Sionea Breust, the director of SCB Legal, the winner of the Indigenous Leader of the Year category at the 2023 Australian Law Awards and a proud Indigenous Australian, emphasised that effectively addressing these challenges requires greater access for Indigenous individuals to existing initiatives and the establishment of additional reforms that acknowledge the unique cultural and social circumstances of First Nations people.

Circle sentencing

Circle sentencing is one of the most effective strategies for addressing the challenges faced by First Nations individuals within the criminal justice system, as outlined by Breust.

Unlike conventional country proceedings, Circle sentencing involves the participation of elders from the offer’s community, who play a pivotal role in the sentencing process.

Breust noted that confronting elders from their community fosters a “greater sense of shame” for the offence that the Indigenous individual committed and cultivates a “deeper respect” for the justice process.

She also articulated that the “setting itself is also positive”, as the arrangement of participants in a circle at the same level, rather than having the “magistrate sitting in a position higher than the individual”, helps to ultimate hierarchical assumptions and fosters a more inclusive environment.

Circle sentencing incorporates a vital element of cultural appropriateness by enabling elders to determine suitable penalties for Indigenous offenders.

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“Historically, it was the elders who decided the appropriate penalty, and allowing them to do so through circle sentencing brings a level of cultural appropriateness into the criminal justice system, but of course, it is constrained to the available sentences at law,” she said.

Breust observed that circle sentencing’s personalised nature and direct engagement with Indigenous communities significantly reduce reoffending rates among First Nations individuals.

She emphasised that this approach helps offenders develop a deeper awareness of the impact and consequences of their actions, thereby supporting their rehabilitation and mitigating the likelihood of future offences.

“I have found that when a person has participated in circle sentencing as opposed to being dealt with in the main courtroom, where they are not engaging in the sentencing process, there is a greater level of awareness about the impact their conduct has had and the consequences, which assists with reducing the level of reoffending amongst those that participate in this,” she said.

Walama List

Breust explained another initiative, the Indigenous list, known as the Walama List, that aims to address the challenges that First Nations individuals face within the sentencing process.

She revealed that this initiative aims to tackle the root causes of offending behaviour by delivering culturally appropriate treatment and rehabilitation, which, in turn, helps reduce the risk of recidivism.

“The focus is on increasing the involvement of First Nations Peoples in the court process, something they are otherwise not involved in, providing culturally appropriate supports and programs aimed at addressing the underlying causes and providing ongoing and regular supervision and monitoring to ensure they keep on track,” she said.

As outlined by Breust, a vital element of the Walama List is the involvement of a senior Aboriginal client and community support officer. This officer is instrumental in “meeting with the Indigenous offender and preparing the intake document”, ensuring that the offender’s cultural needs are appropriately acknowledged and respected.

Having referred her clients to participate in this initiative, she recounted the feedback she had received, noting that offenders reported a heightened sense of trust in the justice system as they felt their cultural identity was respected.

“Having spoken to clients who have engaged in the Walama List, I regularly receive positive feedback. I find that the involvement of the First Nations individuals in the court process and hearing from elders increases their level of trust that there are people who want to help and also creates a feeling of not wanting to commit further offences,” she said.

What more needs to be done?

While initiatives like circle sentencing and the Walama List demonstrated their effectiveness and served as essential steps in addressing the challenges faced by First Nations individuals, Breust underscored the need for the government to take further action to address and resolve these issues.

Breust expressed the need for increased funding for initiatives such as circle sentencing and the Walama List, pointing out that these programs are currently limited to a small number of court locations and offenders.

“Some of the current initiatives in place appear to be working, including circle sentencing and the Walama List. However, the biggest issue is that there is a lack of funding, and the services are not available at all court locations.

“The Walama List is only able to accommodate a small number of offenders, which means that a larger portion of offenders are being dealt with in the mainstream system,” she said.

To effectively address this issue, Breust highlighted the urgent need for the government to increase funding for Indigenous-specific initiatives. By doing so, more First Nations offenders could benefit from these alternative sentencing options, leading to better outcomes and reduced reoffending rates.

“There needs to be an increase in the funding provided by the government to increase the availability of these Indigenous-specific initiatives and alternatives to mainstream sentencing. They also need to be available at all court locations,” she said.

Another significant reform proposed by Breust involves developing a culturally tailored sentencing plan designed to address the unique cultural needs of First Nations offenders.

Currently, the Sentencing Assessment Report is the primary tool used by the court to determine appropriate sentence orders. However, this report doesn’t “take into account that the person is Indigenous” and doesn’t account for the unique cultural background of that individual, which may result in assessments that inadequately reflect their true risk of reoffending.

Breust revealed that to address this, it is essential to develop culturally specific reports that are prepared by individuals with knowledge and experience working with First Nations individuals.

“Instead of a generic Sentencing Assessment Report (‘SAR’) being prepared and provided to the court, an Indigenous person or someone with knowledge and experience working with First Nations Peoples should be preparing a court-ordered report to assist the judicial officers in determining the appropriate sentence and supervision required,” she said.

“Whilst all of these things are good in theory, and we often see initiatives that aim to address these issues, we cannot truly address the underlying causes and make a significant change, unless it is done on a larger scale and by those in positions of authority.”