Question 3–3 Do courts sentencing Aboriginal and Torres Strait Islander offenders have sufficient information available about the offender’s background, including cultural and historical factors that relate to the offender and their community?
Question 3–4 In what ways might specialist sentencing reports assist in providing relevant information to the court that would otherwise be unlikely to be submitted?
Question 3–5 How could the preparation of these reports be facilitated? For example, who should prepare them, and how should they be funded?
Information to assist the court in sentencing
3.76 The discussion above explores the legislative and common law framework setting out the matters that may be taken into account during the sentencing process.
3.77 In preliminary consultations to this Inquiry, a number of stakeholders reported that sentencing submissions made on behalf of Aboriginal and Torres Strait Islander offenders progressing through mainstream courts were often rushed. Stakeholders commented on the time constraints of the courts, and the limited time that lawyers have to prepare comprehensive information about a client’s background and community. Some stakeholders spoke about the submissions being almost ‘standardised’, noting these generally incorporated a reference to the offender’s Aboriginal or Torres Strait Islander heritage, a mention of history of trauma or abuse, substance usage, family and dependants, employment and housing circumstances.
3.78 A number of stakeholders that raised these issues suggested that there was a role for specialised sentencing reports. They argued that the more information a court has about an individual, their community, the supports and options available, and broader contextual factors, the more likely a sentencing outcome can be tailored to respond to the needs of the offender and the community, including the victim—noting that many victims are also Aboriginal and Torres Strait Islander people.
3.79 It was suggested that providing for specialist sentencing reports in an Australian context would give a more complete picture of the particular Aboriginal or Torres Strait Islander offender standing before the court than is currently afforded by the provision of PSRs and the making of sentencing submissions.
3.80 The ALRC invites comment on this issue.
3.81 Gladue reports are specialist Aboriginal sentencing reports prepared in some Canadian provinces to facilitate s 718.2(e) of the Criminal Code, and reflecting the decision in Gladue, discussed above. Gladue reports are a way of integrating one part of specialist court processes into mainstream courts. Gladue reports are different from PSRs. Although both provide information to a court about an offender, Gladue reports are intended to promote a better understanding of the underlying causes of offending, including the historic and cultural context of an offender. These factors may go some way toward addressing the over-representation of Aboriginal and Torres Strait Islander people in prison. PSRs serve a different, but related, function. Supporters of Gladue reports emphasised, for example, that simply because PSRs exist does not suggest there is no need for Gladue reports. Rather, they argued that the two would complement each other.
3.82 According to Jonathan Rudin, Program Director of Aboriginal Legal Services in Toronto, Ontario, Gladue reports are written to include the offender’s ‘voice’ and ‘story’:
[W]hen we do our Gladue reports we spend time interviewing the client and as many other people as we can … Gladue reports tend to be written in the words of the people we interview … we are not summarising what someone says, we are using their language. We don’t edit it, we don’t do anything with it, here is their story [so] what you get are the voices of the individuals who are involved in the person’s life. And certainly that’s very rare because you can go through the court system in Canada from charge to plea, and if you are an accused person you may never say a word to the court.
3.83 Gladue reports are ideally prepared ‘with the help of someone who has a connection to and understands the Aboriginal community’. They assist in putting the offender’s ‘particular situation into an Aboriginal context so that the judge can come up with a sentence that’s unique to you and your culture and has an emphasis on rehabilitation and healing’. This context may include an examination of complex issues of an historical and cultural nature that are unique to, and prevalent in, Canadian Aboriginal communities, including intergenerational trauma, alcohol and drug addictions, family violence and abuse, and institutionalisation. As observed by Rudin:
[I]nformation about things that judges may not know about, like the history of residential schools, like the impact of adoption on aboriginal peoples, the history of addictions for aboriginal peoples in the country which is different from addictions in other communities. Gladue reports also provide detailed information on the impacts of particular experiences including those specific to the person as a result of their Aboriginal heritage, community and experience.
3.84 The time taken to prepare a Gladue report compared to a PSR is significantly higher, reflecting the time spent with the offender and significant others. In the Ontario context, it has been estimated that a Gladue report can take up to 20 hours to complete, compared to the eight to 10 hours for a PSR.
3.85 An evaluation of a pilot in British Columbia noted a number of key differences between Gladue reports and PSRs. Gladue reports were more comprehensive, ‘specifically with respect to Gladue factors’, including ‘more information about resources in rural and remote communities’, and ‘options tailored to the specific needs of each person’. The evaluation found that the greatest contribution Gladue reports made to the court was ‘their potential to draw concrete connections between the intergenerational impacts of colonialism (residential schools, community displacement, child apprehensions) and the person in court for sentencing’.
3.86 The ALRC understands that the Aboriginal Legal Service NSW/ACT are in the process of developing the ‘Bugmy Evidence Library’, a body of material regarding ‘the social disadvantage of certain Aboriginal communities’ for use as evidence in sentencing matters. The Bugmy Evidence Library will be ‘freely available for the use of the legal profession and the judiciary.’
What impact could specialist sentencing reports have?
3.87 The impact of Gladue reports in Canada varies across the provinces. Offenders in some provinces having no capacity to access a Gladue report, other provinces have been able to establish mechanisms to facilitate the preparation of Gladue reports. Aboriginal Legal Services in Toronto, Ontario, for example, has an established program, supported by funding from Legal Aid Ontario, with trained caseworkers who work with offenders to prepare Gladue reports.
3.88 Gladue reports have been described as having a definitive impact at an individual level:
When we do a Gladue report we often see that the sentencing an individual receives is different than what, for example, the Crown and defence were thinking of going into the sentencing. So what we see is when judges have information about the circumstances of an aboriginal offender, when Crowns have that information, when defence counsel has that information, the sentences that people get change. So the Gladue reports make a difference on a micro level.
3.89 In 2007, based on his experience in Toronto, Rudin suggested that the impact of a Gladue report is not reflected in Aboriginal incarceration rates, a British Columbia evaluation suggested more positive results.
3.90 In 2011, the Legal Services Society (LSS) received funding from the Law Foundation of British Columbia to pilot the preparation of Gladue reports in British Columbia.
3.91 In British Columbia, an evaluation of the LSS pilot suggested that ‘Gladue reports may contribute to fewer and shorter incarceration sentences for Aboriginal people’. A comparison of a sub-sample of 42 completed Gladue sentencing cases with a matched sample of 42 LSS Aboriginal client cases where there was no Gladue report, indicated that ‘fewer Gladue clients (23) received a jail sentence than their non-Gladue counterparts (32)’; and that median sentence length for Gladue clients was substantially lower than the non-Gladue sample (18 days compared to 45 days).
3.92 A number of stakeholders in this Inquiry supported Gladue style reports for Aboriginal and Torres Strait Islander offenders, arguing that they would provide invaluable contextual and individualised information about an offender that would assist judges when tailoring a sentence for that offender.
3.93 Generally, stakeholders that were supportive of legislative amendment of the type discussed above, and of Australian courts adopting a Gladue type approach, tended to support specialist sentencing reports for Aboriginal and Torres Strait Islander offenders. These stakeholders were generally of the view that such specialist sentencing reports should be prepared by an Aboriginal and Torres Strait Islander person, preferably with a connection to the offender’s community. At the very least, stakeholders suggested the reports should be prepared by a person with a good understanding of the offender’s particular Aboriginal or Torres Strait Islander community and history.
3.94 Some stakeholders considered that that community corrections officers should not prepare such reports. Similar concerns have been noted in the Canadian context. The LSS evaluation noted that among clients assisted in the British Columbia pilot, there was a ‘broad consensus that probation officers and PSRs can be more harmful than helpful’. In that context, the knowledge of Aboriginal life experience held by Gladue report writers tended to result in clients being more comfortable and opening up about their experiences, including about ‘details they would not have told anyone else, especially their probation officers’.
3.95 Most stakeholders in this Inquiry that supported specialist sentencing reports for Aboriginal and Torres Strait Islander offenders emphasised the need to ensure that appropriate organisations were resourced to prepare specialist sentencing reports. A number highlighted that, without adequate and ongoing resourcing, the introduction of such reports would have little impact at the macro level, as has been the experience in Canada.
3.96 Not all stakeholders supported such reports, noting that courts can already receive sentencing submissions about an offender’s personal background, experience and the impact of various factors—including cultural and systemic factors affecting their community which may contribute to offending. Some also took the view that Australian courts and counsel are already expert in responding to Aboriginal and Torres Strait Islander offenders. The high volume of Aboriginal and Torres Strait Islander defendants coming through courts make them ‘bread and butter’ work for courts and for criminal lawyers, particularly in some courts that operate in areas with high Aboriginal and Torres Strait Islander populations.
3.97 The ALRC is interested in the views of stakeholders about whether specialist sentencing reports in the nature of Gladue reports would assist Australian courts in dealing with Aboriginal and Torres Strait Islander offenders, and if so, how.
The ALRC also invites comment on what options should be explored to facilitate the preparation of such reports—including who should prepare them; and how should they be funded.
Law Report—ABC Radio National, Canada’s Approach to Sentencing Aboriginal Offenders <http://www.abc.net.au/radionational/programs/lawreport/>.
Legal Services Society, British Columbia, Gladue Primer (2011) 7.
Law Report—ABC Radio National, above n 109.
Rudin, above n 40, 48–50.
Legal Services Society of British Columbia, Gladue Report Disbursement: Final Evaluation Report (2013) 3.
Law and Justice Foundation, Awarded Grants in 2015/2016 <http://www.lawfoundation.net.au>.
Law Report—ABC Radio National, above n 109.
Rudin suggested this was largely as a result of resourcing constraints: Rudin, above n 40, 60; Campbell Research Associates, Evaluation of Gladue Aboriginal Legal Services of Toronto Gladue Caseworker Program–Oct 2006–Sept 2007 (2008).
Legal Services Society of British Columbia, above n 114, 25.
Ibid. For the Manitoba experience, see Rudin, above n 40, 48.