ABORIGINAL COURT DAY (also known as NUNGA COURT)

Aboriginal Court Day provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.

Aboriginal Court Day (also known as the Nunga Court or the Aboriginal Sentencing Court) is available from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts.

Sentencing procedures are less formal when facilitated through a sentencing conference. All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. Community elders and Aboriginal Justice Officers provide the Magistrate with advice on relevant cultural and community issues. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.

Sentencing Conferences

The Criminal Law (Sentencing) Act 1988 (SA) was amended in 2005 to provide legislative support to the practice and procedure adopted by the Magistrates Courts facilitating Aboriginal Court Day. Section 9C provides for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 9C(1)]. Any court of criminal jurisdiction may convene a sentencing conference in accordance with section 9C when sentencing an Aboriginal defendant, where the defendant consents to the process. For example, the Supreme Court has conducted sentencing conferences to sentence Aboriginal defendants [see R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237 at paras 3, 4 and 17].

Referral Process

Within the courts of summary jurisdiction, criminal matters can be diverted from the originating court to an Aboriginal Sentencing Court for assessment for eligibility for participation in a sentencing conference. However, the defendant must have at least one matter that originated in a court that has Aboriginal Court jurisdiction. A defendant who has other unresolved criminal offence(s) in any other court may not be considered eligible to apply for sentencing by way of a sentencing conference.

Eligibility criteria

Aboriginal Court Day is available to Aboriginal defendants who have entered guilty pleas or been found guilty of an offence(s) and who wish to be sentenced by way of a sentencing conference. The courts will only accept those court files where pleas have been entered to all matters. As the conference will include Aboriginal elders from the geographical area near the court, referral should be made to the court nearest the community with which the defendant is connected.

Assessment report

All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person in accordance with section 9C of the Criminal Law (Sentencing) Act 1988 (SA) , and that the defendant meets the criteria set out in the Assessment Guidelines. An Aboriginal person for the purpose of this section is a person who is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the community to be, an Aboriginal or Torres Strait Islander [see s 9C(4)].

A defendant who is suffering from a mental impairment (as defined by section 19C of the Criminal Law (Sentencing) Act 1988 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender may not be eligible for a sentencing conference [see Magistrates Court Diversion Program; Drug Court]. The Court has a discretion as to whether or not the defendant will be accepted for a sentencing conference, and may refer the matter back to the originating court should the defendant be found ineligible for participation in this sentencing option.

The sentencing conference

A sentencing conference must include the defendant, his or her legal representative and the prosecutor, and may include the victim [see Criminal Law (Sentencing) Act 1988 (SA) s 9C(2)]. A sentencing conference may also include an Aboriginal elder; a person qualified to provide cultural advice; a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [see s 9C(3)]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [see ss 9C(1) and 9C(5)].

In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process [see Working with Aboriginal Defendants chapter]. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Criminal Law (Sentencing) Act 1988 ss 19B(1)(b) and 19B(d); Griffiths v The Queen (1977) 137 CLR 293;[1977] HCA 44 for common law principles; and Deferral of Sentence (above)].

Sentencing Considerations

The judgment in R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237recognised the value of sentencing conferences for ‘ informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard sentencing procedures ’, and also clarified that:

  • Sentencing conferences do not change the matters to which a court must have regard in accordance with the Criminal Law (Sentencing) Act 1988 (SA) ss10-10C, but the information gathered may provide context within which to consider relevant sentencing factors; and
  • How the Court uses the information from a sentencing conference is within the Court’s discretion [see R v Wanganeen at para 4].

For further information in relation to sentencing principles refer to the Working with Aboriginal Defendants, Guilty Pleas and Sentencing chapters.

Sentencing Conferences  :  Last Revised: Mon May 21st 2012
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