Indigenous Experience Reports for Australian sentencing courts

6.115  The introduction of such a provision raises questions about how best sentencing courts should receive information showing the ‘necessary link’ between the collective and individual Aboriginal experience. Pre-sentence reports (PSRs) and submissions to the court by counsel for the defence can go some way, but there remains a need for courts to be able to receive objective reports that provide insightful and accurate accounts of the experiences of Aboriginal and Torres Strait Islander offenders.

6.116  The ALRC recommends that this information be submitted in the form of ‘Indigenous Experience Reports’ (IERs) in superior courts (District/County and Supreme Courts) and be able to be submitted using less formal methods in the courts of summary jurisdiction (Local or Magistrates Courts).

Summary and superior courts—incidence

6.117  Courts of summary jurisdiction usually hear matters that are less serious in nature than the superior courts. For example, in NSW the Local Court has jurisdiction to sentence an offender to a term of imprisonment of up to two years, or for five years when imposing a cumulative sentence.^[190] Courts of summary jurisdiction hear the majority of criminal matters. In 2015–16, the courts of summary jurisdiction nationally heard 97% (559,884) of all finalised adult criminal matters,^[191] of which 88% were proven guilty.^[192]

6.118  The rest of the matters, that is, matters that attract a sentence of imprisonment of more than two years (referred to as ‘indictable matters’) are heard in the superior courts. In 2015–16 this amounted to 15,971 finalised matters nationally,^[193] of which 79% were proven guilty.^[194] These matters are more serious, so the likelihood of a prison sentence on a guilty finding is increased. For example, in the courts of summary jurisdiction, 6% (30,826) of matters proven guilty received a sentence of imprisonment,^[195] with an average length of seven months,^[196] whereas in the superior courts, 68% (8,608) of those found guilty received a sentence of imprisonment,^[197] with an average length of 38 months.^[198]

Aboriginal and Torres Strait Islander defendants

6.119  It is not possible to know the number of Aboriginal and Torres Strait Islander people that come before the superior and summary courts nationally. Aboriginal and Torres Strait Islander status in court finalisation data is not collected for all states and territories.^[199] Table 6.1 below shows the number of Aboriginal and Torres Strait Islander people in court finalisations per court jurisdiction in NSW, the NT, Queensland and South Australia, and the percentage of all matters before those courts that had Aboriginal or Torres Strait Islander defendants.

Table 6.1: Matters before the courts by state and territory, jurisdiction and by Aboriginal and Torres Strait Islander status (2015–2016)

Source: Australian Bureau of Statistics, Criminal Court Statistics, Cat. No. 45130DO003_201516 (2015-2016) table 13, 14. These data exclude traffic offences. *Custodial sentence includes prison, community-based and suspended sentences.

6.120  Aboriginal and Torres Strait Islander peoples were defendants in 10% to 68% of all matters in the superior courts, and 11% to 77% of those in the summary courts. Accordingly, on average, Aboriginal and Torres Strait Islander peoples represented 26% of defendants in matters before the superior court, and 32% in front of the courts of summary jurisdiction in 2015–2016.

6.121  The available statistics do not provide data on Aboriginal and Torres Strait Islander defendants found guilty by each jurisdiction. This number would provide an indication as to how many matters would be affected by a provision to consider unique and systemic factors. Assuming that 79% of matters heard in the superior courts and 88% in the summary courts result in a finding of guilt,^[200] it can be inferred that, in those states and territories, up to 1,290 Aboriginal and Torres Strait Islander defendants in the superior courts would be affected, and 33,550 in the courts of summary jurisdiction.

The current methods for submitting information to sentencing courts

6.122  Sentencing courts do not have to comply with the same rules of evidence that trial courts do. Evidence Acts in the states and territories prescribe that, unless a court orders otherwise, the relevant Evidence Act does not apply in sentencing.^[201] The common law rules of evidence may, however, apply where there is a dispute.^[202] It is well established, for example, that in sentencing, for the prosecution to establish an aggravating factor, the onus is on the prosecution to establish it beyond reasonable doubt. For the offender to establish a mitigating factor, it need only be done on the balance of probabilities.^[203]

6.123  A sentencing court can inform itself about the offender in a multitude of ways: it can receive information through written or oral submissions regarding the characteristics and background of the defendant submitted by the parties or via reports ordered by the court. In certain matters, sentencing courts can also receive victim impact statements, which can be submitted in writing or read in court by the victim or family member.^[204]

Submissions by the parties

6.124  The court can receive any information that the court considers appropriate to enable it to impose the proper sentence.^[205] Evidence can be submitted by the defence or prosecution orally or through written submissions.

6.125  During consultations, a number of stakeholders to this Inquiry advised the ALRC 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.

6.126  The Mental Health Commission submitted that some courts do not have adequate information available to consider offenders’ backgrounds, including relevant cultural and historical factors.^[206] Australian Lawyers for Human Rights suggested this gap was due to under-resourced legal aid lawyers, who did not have sufficient training or time to elicit such information, as well as due to the limited availability of interpreters.^[207]

6.127  The lack of information was considered to be a widespread problem. VALS submitted that there was little information in ‘mainstream courts’ regarding cultural backgrounds of Aboriginal and Torres Strait Islander offenders, and that there was no legislative requirement for the court to consider such information.^[208] The Human Rights Law Centre noted that it was

left to the discretion of judges and magistrates as to how (if at all) they will take into account the historical and contemporary systemic discrimination and disadvantage that contributes to the over-representation of Aboriginal and Torres Strait Islander people in criminal justice systems and to the offending of particular individuals.^[209]

6.128  VALS advised that, even in the Koori Court, where the historical impacts of colonisation and the person’s individual background are generally considered, if the Elders did not know the offender or their family, there may still be information lacking.^[210]

Pre-sentence reports

6.129  Pre-sentence reports (PSRs) are reports produced to assist ‘Judges or Magistrates to select the most appropriate sentence for offenders who have pleaded guilty to, or have been found guilty of, an offence’.^[211] PSRs have a statutory basis in all states and territories, except NSW where PSRs operate by agreement.^[212] PSRs in written form may take up to six weeks to complete, for which the matter is adjourned, and the offender is either bailed or held on remand.^[213]

6.130  PSRs are to include certain matters in relation to the offender, known as ‘pre-sentence report matters’. These include, for example: the offender’s age, medical and psychiatric history; the offender’s educational background, employment and financial histories; any prior management by corrective services and the level of compliance under management; and an assessed level of risk.^[214] PSRs may contain any other information requested by the court,^[215] including information regarding the suitability of sentence types, noting the ‘possible benefits of a particular intervention’.^[216]

6.131  The majority of statutory provisions that outline pre-sentence report matters do not identify Aboriginality or cultural background as a pre-sentence report matter at all.^[217] While some jurisdictions refer to the offender’s ‘social history and background’,^[218] only the ACT includes ‘the offender’s social history and background (including cultural background)’ as a pre-sentence matter.^[219]

6.132  Research conducted in NSW and Victoria by academics Anthony, Marchetti, Behrendt and Longman, and published in 2017, highlighted the ‘pivotal role’ PSRs have in the sentencing decision. It suggested that PSRs are ‘very influential’ to the sentencing decision to the extent that, for example, in the ACT, a court must provide reasons where it deviates from the recommendations of a PSR.^[220] The research noted the absence of information relevant to offenders’ Aboriginal and Torres Strait Islander experience in PSRs. It concluded that sentencing courts do not receive sufficient information relevant to Aboriginal and Torres Strait Islander background factors in sentencing, noting that submissions by counsel and PSRs are generally not enough.^[221]

6.133  This finding was reaffirmed by stakeholders to this Inquiry.^[222] Legal Aid ACT submitted that PSRs contain only ‘rudimentary’ information about the offence and the offender, and lack the ‘necessary depth and substance required to provide the court with a holistic, accurate picture’. The ‘routine’ format means that PSRs are ‘unable to map the full impact of inter-generational and historical trauma on ATSI offenders’. Legal Aid ACT recognised that, while the current approach of providing information to the sentencing court may satisfy the ‘interests of justice with regard to sentencing non-Indigenous offenders … with respect to Aboriginal and Torres Strait Islander offenders and particularly in light of the Bugmy decision, it requires significant revision’.^[223]

6.134  The Aboriginal Legal Services WA (ALSWA) had ‘longstanding concerns’ about the use of PSRs in WA, which, in their experience, did not ‘canvass issues of Aboriginality and systemic issues such as deprivation, intergenerational trauma and discrimination’ and, as such, were ‘rarely culturally appropriate’.^[224] In the view of ALSWA some PSRs were prepared well and provided information that may be new to the court, such as information about the offender’s prior involvement with the child protection system or experience of family violence. Critically, however, the ALSWA suggested that the reports mainly supported ‘systemic bias within the system’, as:

• interviews were often between an Aboriginal or Torres Strait Islander offender and a non-Indigenous corrective services staff member, and may even be conducted over the phone.^[225] This likely leads to mistrust and a non-productive interview where the interviewer considers the offender to be without remorse;
• there may not be an interpreter;
• the report writer may ‘cut and paste’ from previous reports on the offender; and
• in the text of the report, the report writer may present their view as fact and the offender’s comments as claims.^[226]

6.135  The ALSWA provided the following case study and commentary, which highlights some of the issues of PSRs when developed for Aboriginal and Torres Strait Islander offenders:

In 2017, the District Court sentenced A to 9 months’ imprisonment for Aggravated Burglary. For the sentencing hearing, the court had a PSR prepared by a community corrections officer (CCO) and a Psychological Report. A was in custody in a regional prison; however, the CCO who prepared the PSR was from a metropolitan office. The CCO interviewed A over the phone. The report stated that A had poor insight, was reluctant to discuss the offence and his personal history and contended that this suggested ‘potential difficulties with him engaging meaningfully with interventions that meet his cognitive and treatment needs’. The PSR was a typical deficit-focused report with constant references to his failings, ‘cognitive deficits’ and poor past compliance with community based dispositions. The Psychological Report made similar references to his ‘lack of insight’ and reluctance to discuss the offences and his background. The PSR mentioned that because his assessment was conducted by telephone it was ‘difficult to gauge physical cues which may have been utilised to encourage an open discussion’. It is concerning the author of the PSR acknowledges that it is only ‘difficult’ to gauge physical cues over the telephone—one would have thought it was impossible! What is even more alarming is that neither the CCO nor the psychologist was aware that A had significant hearing loss in both ears. Fortunately, this was known by the ALSWA lawyer, who was able to elicit significant information about A’s life and background from family members.^[227]

6.136  The Change the Record Coalition also suggested that the current mechanisms for obtaining relevant background information in PSRs was ‘unsuitable as they often do not contextualise offending in light of historical and systemic factors (including intergenerational trauma and socioeconomic disadvantage) and further fail to examine culturally safe sentencing options’.^[228] The NSW Bar Association submitted that the

absence of such information can represent difficultly for a sentencing judge that cannot be overestimated. Without such information, a sentencing judge is constrained in his/her ability to take into account material relevant to the individual being sentenced.^[229]

6.137  VALS believed that there needed to be a mandated, community-led and culturally appropriate method to obtain such information that would assist the courts in finding alternative sentencing measures to prison. The method needed to directly address the impacts of colonisation and disadvantage experienced by Aboriginal and Torres Strait Islander peoples. VALS submitted that such a process would ensure the courts are ‘playing a vital role’, not only in addressing the inequality of incarceration, but in ‘lowering prison rates for Aboriginal and Torres Strait Islander peoples’.^[230]

Moves to Gladue-style reports in Australia

6.138  Steps have been taken to provide for Gladue-style reports in Australia. These steps have varied in scope. For example, the Aboriginal Legal Service NSW/ACT are developing a ‘Bugmy Evidence Library’—a body of material containing information about the ‘social disadvantage of certain Aboriginal communities’^[231] for use as evidence in sentencing matters. According to the Law Council of Australia submission to this Inquiry, these reports will provide ‘narrative and statistical information about Aboriginal communities in NSW where the essential aim of the project is to provide background community evidence supporting an individual’s personal experience in that community, which is often of social disadvantage’.^[232]

6.139  In the NT, the Law and Justice Group’s ‘reference writing processes’ are designed to facilitate pre-court meetings with members of the Aboriginal and Torres Strait Islander community and community leaders in order to write pre-sentence recommendations in reference letters to the presiding judge. The North Australian Aboriginal Justice Agency (NAJAA) provided information on the reference letters:

These reference letters communicate important background information about the offender, including important cultural information and also provide community views on offending and where appropriate suggest alternative to jail options for sentencing. In 2017 the Kurdiji Law and Justice group extended this work to include sitting in court with the presiding judge and providing input to the court system where appropriate. Kurdiji members have reported an increase in community support since they began sitting in court with the Judge. Kurdiji members placed great emphasis on the importance and symbolic nature of Kurdiji being seen by defendants as sitting alongside the Judge (and as being respected by the Judge as a source of authority) and have spoken very positively about the possibility of Kardia (Western mainstream legal system) and Yapa (Warlpiri) laws working together.

While this current work is an important step towards making the current system slightly more culturally accountable, there are a number of limitations to this work including elders having to volunteer their time and the process largely unsupported by key agencies in the criminal justice system. In order for pre-sentence reports to be meaningful and have weight with the court, they ought to have legislative authority.^[233]

6.140  The ACT Government advised the ALRC of an intention to trial the use of ‘Aboriginal and Torres Strait Islander Experience Court Reports’ in sentencing courts in the ACT. The proposed trial is in response to a 2015ACT Standing Committee on Justice and Community Safety report, Inquiry into Sentencing in the ACT. As noted above, that report recommended that the ACT Government legislate to ‘explicitly require the courts to consider the Indigenous status of offenders’.^[234] It further recommended that the ACT Government create a specific mechanism for the ‘creation of reports similar to Gladue reports in Canada, informing courts of any relationship between an accused’s offending and his or her Indigenous status’.^[235]

6.141  The ACT Government has commissioned Legal Aid ACT to design a framework for the creation of specialised reports similar to Gladue reports in Canada. Legal Aid ACT recommended the creation of Aboriginal and Torres Strait Islander ‘Experience Court Reports’ that aimed to provide the courts with pre-sentence information about an offender’s community, family and personal circumstances and the impact of the cultural, social and historical issues confronted by Aboriginal and Torres Strait Islander peoples. The development of a trial for the Experience Court Reports is under consideration.^[236]

6.142  VALS released a discussion paper on ‘Aboriginal Community Justice Reports’ in 2017 that proposed a trial for such reports to be written by Aboriginal and Torres Strait Islander communities in Victoria. These reports are proposed to be produced when sentencing offending that may attract a jail sentence and for ‘a variety of justice scenarios, including bail, sentencing, child protection, and for young people’.^[237]

Nomenclature

6.143  There has been some discussion about how to refer to such reports in the Australian context. In Canada, they are ‘Gladue reports’. ‘Bugmy reports’ are not appropriate in Australia because, in Bugmy’s case, there was no such report. The Discussion Paper to this Inquiry termed them ‘specialist sentencing reports’, but this could indicate that the focus of the report would be on the sentence. ACT Legal Aid suggested the term ‘Experience court reports’, arguing this phrase more accurately describes the ‘purpose and nature’ of the reports.^[238]

6.144  VALS suggests using the term ‘Aboriginal Community Justice Reports’, which is the title given to the proposed trial of the reports in Victoria.^[239] Dr Thalia Anthony suggested ‘Indigenous Community Reports’.^[240]

6.145  The ALRC suggests that ‘Indigenous Experience Reports’ (IERs) accurately describes the nature of the reports, but encourages courts in each state and territory to work with Aboriginal and Torres Strait Islander organisations to determine the most suitable title for the reports in that jurisdiction.

Stakeholders to this Inquiry

6.146  The majority of stakeholders to this Inquiry supported the introduction of IERs, to operate alongside of PSRs, for Aboriginal and Torres Strait Islander offenders, arguing that IERs would provide invaluable contextual and individualised information about an offender that would further and better assist judges when tailoring a sentence for that offender.^[241]

6.147  There were some considerations about the production of such reports. These include who should author and resource IERs, as well as the kind of information that they should contain.

Independent Aboriginal authorship

6.148  It was generally agreed that corrective services should not prepare IERs.^[242] These reports should instead be prepared by an Aboriginal and Torres Strait Islander person or group, 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. ^[243]

6.149  Some stakeholders suggested that Aboriginal legal services would be best placed to author the reports. Others identified the need for authorship to be independent of the defence,^[244] so as to not undermine the perceived impartiality and credibility of the reports.^[245] The ALRC supports the independent production of IERs, where possible.

Content of reports

6.150  The content of an IER would be distinct from a PSR as their ‘fundamental purpose’ would be to ‘identify material facts which exist only by reason of the offender’s Aboriginality’.^[246] Broadly speaking, stakeholders acknowledged that the introduction of IERs would ‘play a vital role in bringing the entirety of complex factors that may influence Indigenous offending to the fore’.^[247]

6.151  The ALHR suggested that IERs should include information regarding ‘past trauma, past abuse, substance abuse, information as to loss of culture, and positive cultural issues’.^[248] The Community Restorative Centre suggested the reports should give family and community background, and other ‘important contextual information’, such as

intergenerational trauma pervading communities, known histories of local massacres, harsh mission life, stolen children as well as the life experiences of the accused, that may include removal from family, early school leaving, domestic and family violence.^[249]

6.152  ALSWA suggested that IERs could also include information about the offender’s experiences with corrective services and other relevant government and non-government agencies.^[250] Other suggested content included any underlying developmental or health issues, such as foetal alcohol syndrome disorders,^[251] and loss of language.^[252]

6.153  It was also suggested that IERs identify any available and appropriate alternative sentencing options.^[253] ALS NSW/ACT suggested that IERs could draw from the ‘Bugmy Evidence Project’ under development in NSW (discussed above) to provide information to a sentencing court on the background of an individual and their community, and of available community-based rehabilitation options and alternatives to custody.^[254]

Resourcing

6.154  It is difficult to estimate how many IERs would be required to be produced annually. It is estimated that, in the four states and territories itemised in Table 6.1 above, around 1,290 IERs could have been ordered by the superior courts if available during the 2015–2016 period. Nearly half of these would have been ordered in Queensland.

6.155  Stakeholders to this Inquiry were alert to the requirement for enhanced resources to support the preparation of IERs. For example, Sisters Inside noted:

If these reports were to be introduced, dedicated funding would have to be made available through Legal Aid commissions for this purpose, with the presumption that all Aboriginal and Torres Strait Islander peoples are eligible for funding if they choose to rely on a report. Aboriginal and Torres Strait Islander peoples must not languish in prisons waiting for funding for reports or for availability of report writers.^[255]

6.156  The Community Restorative Centres noted the need to fund Aboriginal legal services and community groups such as Wirringah Baiya Aboriginal Women’s Legal Service.^[256] ALS NSW/ACT suggested the resourcing model from Ontorio, Canada, where Legal Aid funds the preparation of the reports by local Aboriginal organisations. Membership on the panel requires certain levels of training and competence, and they are authorised to bill five additional hours in making a submission.^[257]

6.157  The resourcing requirements for Australia would stretch beyond the actual preparation of the report. Alternative sentencing options, support networks and appropriate training and guidelines (see below) would also need to be developed and supported.^[258] As identified by VALS, an IER model needs to be supported by ‘case management workers post-sentence, adequately resourced culturally appropriate and community-led programs, and training and support of the judiciary’.^[259] If community-led alternative sentences were not funded then the information contained in IERs would be ‘redundant’.^[260]

Arguments against the introduction of IERs

6.158  An argument against the introduction of IERs was advanced by NSW Chief Magistrate Henson, who contended that it was not the role of the court to inform itself, and that information of this type was best left for submissions by the defence:

While the entrenchment in legislation of a principle or factor that requires the sentencing court to consider the unique systemic and background factors affecting Aboriginal or Torres Strait Islander peoples might arguably have the effect of enhancing the prominence of this issue at a societal level, the practical question that remains for the court is how such a principle or factor is to be taken into account in the context of an individual case. Of course, it is not the role of the court in an adversarial criminal justice system to inform itself of such matters; once again this depends, and will continue to depend, upon the nature and substance of the submissions made on behalf of the offender.^[261]

6.159  The NSW ODPP submitted that consideration of relevant systemic and background factors was already part of the NSW sentencing process and that ‘counsel submissions, along with PSRs and any expert reports, such as that of a psychologist, do generally provide sufficient background information to NSW sentencing courts.’^[262] The NSW ODPP did, however, acknowledge that reports prepared with the assistance of someone connected to the offender’s community may add value, as this was generally missing in PSRs.^[263]

Flexible approach in courts of summary jurisdiction

6.160  It would be ideal for an IER to be produced for every matter, or even just in matters when a sentence of imprisonment was likely. The ALRC is aware, however, that resourcing and time may make it implausible to produce IERs in all, or even limited, circumstances, and so recommends that a more flexible approach be taken in courts of summary jurisdiction.

6.161  Some stakeholders considered that a flexible approach to receiving the relevant information should be taken, regardless of the jurisdiction of the sentencing court. The Human Rights Law Centre suggested that IERs should be ‘just one example of an alternative approach to ensuring courts are properly equipped to appropriately sentence Aboriginal and Torres Strait Islander offenders’. The Human Rights Law Centre emphasised the need for state and territory governments to work with Aboriginal and Torres Strait Islander representatives to determine the most appropriate way to ensure that cultural factors and systemic discrimination and disadvantage are adequately taken into account by courts.^[264] The Law Council submitted it to be ‘critical’ that Aboriginal and Torres Strait Islander legal, health and community organisations are consulted as to the best way to put information before the courts.^[265]

6.162  Other stakeholders suggested the need for the limited application of IERs. The ALSWA considered that it would be ‘cost prohibitive’ to require an IER for every criminal matter. The ALSWA suggested that such reports be a feature of courts hearing indictable matters (District/County or Supreme Courts) or where requested by magistrates in Local or Magistrates Courts, particularly when an offender may be facing prison in the lower court.^[266] The Community Restorative Centre with the Miranda Project also submitted concerns regarding the practicalities of providing an IER in Local Courts, particularly when an offender may be unrepresented. In their view, an Aboriginal Court Support service would be needed in the lower courts to prepare people on the day of appearance, with quick access to information about communities, with ‘carefully structured, sensitive questions concerning the individual’s life experiences’.^[267]

6.163  The Law Society in WA recommended the constitution of a specialised agency to provide reports, including to Magistrates Courts.^[268]

6.164  Local and Magistrates Courts handle the bulk of criminal matters in all jurisdictions. They are where most people who are in prison have been sentenced, including Aboriginal and Torres Strait Islander offenders. The ALRC considers that the volume of matters demands more flexible and responsive options. The importance of Aboriginal and Torres Strait Islander involvement is widely recognised. For this reason, the ALRC recommends partnerships that bring together governments and Aboriginal and Torres Strait Islander organisations and communities to develop mechanisms to do this. In designing ‘from the ground up’, it is more likely that the outcomes will reflect local knowledge, strengths and opportunities, and consequently deliver better outcomes.