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Thesis Details
TitleSpecialist Courts for Sentencing Aboriginal Offenders
AuthorBennett, Paul
InstitutionFlinders University
Date2013
AbstractThe specialist Aboriginal court is one of the most visible measures introduced to address the disadvantage and particular needs of Aboriginal people in the criminal justice system. This study examines the different facets of the Aboriginal courts: their aims, how they work and what they achieve. These inquiries lead to a broader question - what is the significance of the Aboriginal court? Since the first Aboriginal court was established, that question has been variously answered, with some emphasising the court's distinctive features, such as the use of a more culturally appropriate court process or the empowerment of the Aboriginal community, whilst others stress their expected outcomes in terms of recidivism and compliance with court orders. Each of these features is important, influencing the court's processes and outcomes, its relationship to the Aboriginal community and the way Aboriginal people experience the criminal justice system through the Aboriginal court. However, the main focus of this thesis is the significance of the Aboriginal court as a sentencing process. With informality and direct communication between the participants, the Aboriginal court receives a diverse range of information and cultural advice from Aboriginal Elders and other community members. This and the pivotal relationship of the Elders and judicial officer produce a distinctive form of decision-making. As a result, the Aboriginal court provides a simple and direct means to inform the court about the defendant's Aboriginality, offending and personal circumstances in a manner that a busy magistrates' court rarely has the time or resources to achieve. This work is based primarily on a review of the literature, court publications and the growing number of studies which provide quantitative and qualitative data on the Aboriginal courts. Also, I draw on my previous experience as a lawyer in the South Australian Aboriginal courts (and now as a magistrate in mainstream and specialist courts) to add to these sources. The capacity of the Aboriginal court to provide a better appreciation of Aboriginality in sentencing is almost wholly overlooked in the literature. Yet it should not be. It is the practical significance of Aboriginal court sentencing; it provides the means to overcome barriers of language, culture and social disadvantage so that Aboriginal people may be sentenced in a way that allows their 'story' to be heard and understood.
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