The ACT government is set to trial specialised sentencing reports for Aboriginal and Torres Strait Islander offenders in a bid to reduce incarceration rates and increase rehabilitation prospects.
The Australian-first is based on Canada's Gladue reports, which is a type of detailed pre-sentence report used in sentencing Indigenous offenders.
The reports aim to acknowledge and tackle the intergenerational disadvantage that leads to offending.
In Canada, the reports are prepared by specialist caseworks who can make recommendations to the court about an appropriate sentence after taking into account information about the offender's background, including interactions with child protection, physical or sexual abuse, developmental or health issues, and history of substance abuse.
Queensland has a process for reports for Aboriginal and Torres Strait Islanders in their Murri Courts which are completed by an Aboriginal community report writer.
But are not as comprehensive or detailed as the sort of reports planned in the ACT.
The government commissioned Legal Aid ACT to investigate a similar system for sentencing courts in Canberra.
The report was finalised in June and the government is now working to develop a trial of the system.
Figures from this week show there were 456 detainees in custody at Canberra's jail – 96 of whom identified as being Aboriginal and Torres Strait Islander (82 male, 14 female).
The figure means about 21 per cent of people in detention in the ACT are Indigenous, despite making up less than 2 per cent of Canberra's population.
Justice and Community Services data reveals the average number of Indigenous detainees at the jail has increased steadily over recent years.
The number of Indigenous prisoners among the daily average sentenced detainee population grew from 40.2 in 2013-14 to 61.8 in 2015-16.
Over the same period, the number of Indigenous prisoners in the daily average unsentenced detainee population climbed from 18.45 to 30.1.
ACT Attorney-General Gordon Ramsay said the government was committed to reducing the incarceration rate of the Aboriginal and Torres Strait Islander's and to ensure the territory's criminal justice system took into account barriers to justice faced by indigenous people.
"I support exploring the options for providing sentencing courts with information about Aboriginal and Torres Strait Islander backgrounds so that sentencing courts are in a better position to make judgments that are fair and culturally appropriate," he said.
"I look forward to receiving recommendations for law reform that come out of Legal Aid ACT's work on this topic."
Mr Ramsay said the work on the reports began with the government's Response to the Standing Committee on Justice and Community Safety's Inquiry into Sentencing.
"At that time the government agreed to legislate to require sentencing courts to consider the Aboriginal or Torres Strait Islander status of offenders," he said.
"Specialised sentencing reports are intended to assist in addressing the potential for inequality faced by Aboriginal and Torres Strait Islander people in the sentencing process, particularly where there is a risk of incarceration."
Australian National University college of law senior lecturer and barrister Anthony Hopkins said the reports should not be misconstrued as being designed to give a discount for being Aboriginal, but rather to enable sentencing courts to pay particular attention to the experience of Indigenous Australians.
"The premise is that we know that too many Indigenous Australians experience lives of disadvantage, systemic discrimination and intergenerational trauma leading to their offending, but we don't have that story told in court," Dr Hopkins said.
"If it was, it would inform questions of culpability and inform options for rehabilitation, reform and healing.
"Intergenerational trauma exists in a very real way."
Dr Hopkins - who has written a number of papers on the issue, including his doctoral thesis - said there was currently a silence in the justice system about that inter-generational disadvantage.
"The antidote to this silence is paying attention. They are not expert reports, they should be seen as truth reports," he said.
"Primarily they're about understanding the offender's experience, both in their own words, but also going out to family and community and trying to get that full picture. It is then for the sentencing judge to determine how this is to be taken into account in accordance with sentencing principle.
"It's not that you need a report to say Aboriginal people suffered disadvantage, it's what's happened in this person's life and how it is connected back to the group experience."
But the barrister said the reports alone were not an answer to high rates of incarceration for Indigenous people.
He said there needed to be a whole of criminal justice approach to tackle the issue.
"It's one thing to understand the individual's circumstance, but unless you provide avenues out that are cultural appropriate, then you've only fought half the battle.
"Unless it's paired with culturally sensitive pathways for rehabilitation and healing, it's being set up to fail.
"These reports should not be seen as simply telling stories of disadvantage. There is enormous strength within the Indigenous community, borne out of a shared history of survival, pride and connection to culture and country. These stories of resilience also need to be told and understood, and their potential realised."
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