The authors are indebted to Keishwa Riley, Office of the Director of Public Prosecutions (‘ODPP’) Witness Assistance Officer and proud Wiradjuri and Wailwan woman, who was invaluable in liaising with the families of the deceased in these matters and advocating on this issue.

Conventional sentencing courts may be able to contribute to the healing of First Nations communities by sentencing offenders in person and on Country where they have killed a First Nations person. This is owed to the customs surrounding punishment, which emphasise the collective healing of the deceased’s kin and community, that may be found in First Nations communities. These customs were recently considered in R v Knight (No 1) [2023] NSWSC 195 (‘Knight’), and R v Hegedus (District Court of New South Wales, Robinson DCJ, 3 November 2023) (‘Hegedus’).^[1] In these matters, following discussions with the deceased person’s surviving kin, the prosecution sought to have the offenders sentenced in person and on Country for cultural reasons.

In New South Wales, there is a statutory presumption within the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘AVL Act’) that sentencing proceedings should occur via audiovisual link (‘AVL’).^[2] This presumption may be displaced and the physical attendance of the offender directed if the sentencing judge considers that it is ‘in the interests of the administration of justice for the [offender] to appear physically before the court’.^[3] In Knight and Hegedus, the offender’s safety and wellbeing during physical transport, and the efficient use of police and corrections resources, were key considerations within this test.^[4] As this article will show, it may also allow for consideration of First Nations’ cultural values. However, this requires a greater acknowledgment of the interests of the victim’s community and kin during the sentencing exercise.

The cultural background

Prior to colonisation, First Nations people maintained diverse and sophisticated customs concerning wrongdoing and the punishment of wrongdoers.^[5] Traditional forms of punishment included spearing, duelling, and ostracisation from one’s tribal land.^[6] Owing to the significance of First Nations kinship networks, as well as collective notions of wellbeing within First Nations communities,[7] it was necessary that punishment for the most serious crimes – such as killings – occur in public.^[8] This involved the kin and community of the deceased person in the process of punishment, thereby contributing to their collective healing.^[9]

Another custom relates to the belief that a deceased person’s spirit needs to travel to the next life to rest peacefully. This belief is extremely important, and has provoked certain post-death practices, including the common practice of using alternative names to describe a recently deceased First Nations person.^[10] A further belief holds that where a First Nations person has been killed, their spirit will not rest until justice is done according to punishment lore. If the deceased’s kin believe that the spirit has not rested, they may experience ‘indescribable torment and distress’.^[11]

Many First Nations customs have survived colonisation by adapting to it. In Recognition of Aboriginal Customary Laws, the Australian Law Reform Commission (‘ALRC’) emphasised that modified punishment practices include shaming and exile from community,^[12] while traditional punishments such as spearing are still practiced in some communities.^[13] Furthermore, the ALRC also stated that offences committed under the ‘general’ criminal law may elicit a customary response in First Nations communities.^[14]

Embracing these customs

Evident in the punishment customs discussed above is their restorative capacity. Traditional punishment was not purely retributive, as it also contributed to the collective healing of the deceased’s kin and community. In light of the deplorable rates of victimisation experienced by First Nations communities – in 2022–23, First Nations people were killed at 7.2 times the rate of non-First Nations people^[15] – there may be significant benefits for these communities where the restorative nature of customary punishment is embraced by conventional sentencing courts.

While elements of conventional sentencing practice express restorative principles – for example, the victim impact statement regime found in pt 3, div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) – these principles are more commonly found in designated therapeutic sentencing environments, including the Walama List in the District Court, circle sentencing in the Local Court, and the Youth Koori Court in the Children’s Court. Although these specialist courts are invaluable, they are focused – with the exception of circle sentencing – on the healing of offenders. Expanding the conventional sentencing court’s engagement with First Nations’ customs around punishment may empower a more effective approach to healing First Nations communities.

R v Knight (No 1) [2023] NSWSC 195

Knight concerned the sentencing of a Ngemba offender (the applicant) for murdering his Ngemba partner (the deceased) in Bourke, on Ngemba Country. During his arraignment in the Supreme Court, the applicant was directed to attend his sentencing proceedings in person in Bourke. In February 2022, the applicant applied to be sentenced via AVL.^[16]

The prosecution opposed this application, relying on an affidavit by an ODPP solicitor who had consulted the deceased’s great-aunty, Louise Brown, a Ngemba elder and the matriarch of the deceased’s family.^[17] Aunty Louise advised that First Nations kinship networks are complex and that sentencing the applicant physically in Bourke before the kin and community of the deceased was important for the healing of the deceased’s family and the ‘entire Bourke community’. Aunty Louise stated that this would represent a modern form of ostracism, which would have been imposed on the offender under customary law.

Justice Yehia heard the application on 8 March 2023. At the hearing, the applicant submitted that transporting him to Bourke would involve onerous conditions of transfer and housing – including periods at several different correctional centres – that would be detrimental to his welfare, and also place a considerable drain on local police resources.^[18]

Yehia J granted the application. Her Honour acknowledged the increased acceptance of Indigenous cultural values in criminal law but was not persuaded that it was in the interests of the administration of justice that the offender attend in person given that the sentencing proceedings were not being conducted in a restorative justice model such as the Walama List^,[19] noting also that family and community members could attend the proceedings.^[20]

Her Honour found it ‘difficult to see’ how having the offender sentenced in person could better fulfil the purposes of sentencing prescribed within s 3A of the Sentencing Act, namely, to make the applicant accountable for his actions, to denounce his conduct, and to recognise the harm done to the deceased and the community.^[21] Yehia J also referred to the statutory presumption in favour of an offender appearing by AVL^,[22] and evidence that physically transferring the offender to Bourke would require him to endure onerous conditions, and would also burden local police and corrections resources.^[23]

Her Honour commended the prosecution for highlighting the importance of First Nations cultural values, noting that in ‘an appropriate case where there is sufficient evidence’, these considerations may dictate that the sentencing exercise should occur in person.^[24]

R v Hegedus (District Court of New South Wales, Robinson DCJ, 3 November 2023)

Hegedus concerned the sentencing of a non-First Nations offender for the manslaughter of a Wiradjuri Elder on Wiradjuri Country. The family of the deceased advised the prosecution that cultural considerations supported the offender being sentenced in person and on Country. In light of the evidentiary deficiencies identified by Yehia J in Knight, the prosecution obtained an expert cultural report from Mr Paul Carr, Wiradjuri Elder and Chairperson of the Three Rivers Regional Assembly.

In the cultural report, Mr Carr observed that the killing of one member of a kinship group has a ‘profound effect on the entire kinship group’.^[25] He stated that ‘in the interests of restorative justice’, an offender should return to Aboriginal victim’s Country to face the consequences of his actions in the community that his crime has affected.^[26] Consistent with Aunty Louise’s view in Knight, Mr Carr stated that where an offender receives a custodial sentence in person and on Country before the deceased’s kin, this would represent ‘a modern form of ostracism’.^[27] Finally, Mr Carr noted that the ‘healing and rest’ of the deceased person’s spirit is ‘paramount’. Where the offender does not face punishment in accordance with lore, the spirit will not rest, causing ‘indescribable torment and distress to the family and Aboriginal community’.^[28]

The prosecution applied for the offender to be sentenced in person in Dubbo.^[29] The prosecution relied on the report of Mr Carr, and an affidavit by the deceased’s sister, to argue that the cultural reasons for the offender’s physical attendance were persuasive, and better achieved the s 3A purposes of sentencing.^[30] The offender resisted the application on the basis that transporting him to Dubbo would involve significant risks to his welfare.^[31] He would have to be housed at Wellington Correctional Centre, where he had previously been assaulted in connection with the death of the deceased. Evidence in support of this submission included a Corrective Services direction that he was unsafe at Wellington Correctional Centre.^[32] The prosecution submitted that Corrective Services had an overriding duty to provide for the safety of the offender.^[33]

The application was heard and dismissed by Robinson DCJ on 3 November 2023.^[34] Her Honour’s primary reason related to the real possibility that the offender would be harmed if he was housed in Wellington Correctional Centre.^[35] Her Honour noted that granting the prosecution’s application would be contrary to the Corrective Services direction regarding the safety of the offender.^[36] While Robinson DCJ recognised the importance of First Nations cultural values within the criminal law,^[37] her Honour followed Yehia J in distinguishing between conventional sentencing proceedings and those occurring in restorative environments like the Walama List.^[38] Her Honour also noted that the deceased’s family would be able to participate in the proceedings by reading victim impact statements.^[39]

Discussion

Can conventional proceedings be restorative?

Both judges in Knight and Hegedus distinguished between conventional sentencing proceedings and specialist sentencing courts that adopt restorative principles.^[40] On the basis of this distinction, Yehia J was not persuaded that in-person proceedings could better fulfil the s 3A purposes of sentencing.^[41] However, s 3A(g) recognises the harm done to the victim of crime (in the case of a killing, their family) and the community. The evidence provided by Aunty Louise and Mr Carr was grounded in authoritative reasoning about the complexity and significance of First Nations kinship structures and indicated that sentencing an offender in person and on Country will be healing for the deceased person’s kin and community. Accordingly, s 3A(g) of the Sentencing Act offers a direct vehicle to advance this healing process.

Offender welfare and logistical resources

In Hegedus, the welfare of the offender during transport to the physical proceedings was the determinative factor within Robinson DCJ’s assessment of the interests of the administration of justice. This factor was also considered by Yehia J in Knight, alongside the additional logistical burden that would be imposed on local police and corrections resources by requiring the offender to physically attend their sentencing proceeding. Offender welfare is a relevant consideration in all matters and may bear additional weight when the sentencing judge is considering the position of a First Nations offender, given the heightened risks that First Nations people face in custody. In appropriate matters where the physical safety of offenders can be guaranteed, the inconvenience that offenders may experience during physical transport and temporary housing, and the additional logistical burdens placed on police and corrections resources, must be balanced against the restorative long-term benefits to the kin and communities of the deceased where offenders are brought before them to be sentenced. Submissions of this nature require advocates to negotiate a greater space for victims of crime and their kin within the ‘interests of administration of justice’ test prescribed by the AVL Act. Given the disproportionate rates of victimisation experienced by First Nations people, this is warranted.

Conclusion

Knight and Hegedus allow that in an appropriate case, it may be in the interests of the administration of justice that an offender convicted of killing a First Nations person is sentenced in person and on Country for cultural reasons. At a time when governments are increasingly committed to the self-determination of First Nations communities, it is important that all criminal justice institutions, including conventional sentencing courts, are able to embed First Nations cultural values in their processes. While therapeutic sentencing environments like the Walama List are a positive beacon for the criminal justice system’s engagement with First Nations cultural values, these are limited in their operation, and are focused on the healing of offenders. The interests of First Nations victims of crime and their kin also require recognition of cultural values and customs, including where these values and customs may properly inform the conventional mechanisms of the criminal justice system.

^ENDNOTES

^{* Damian Beaufils (Bachelor of Engineering, University of Wollongong 2007; Bachelor of Laws, University of Sydney 2010; Master of Laws, University of Wollongong 2013) is a proud Gundungurra man and Crown Prosecutor at the New South Wales Office of the Director of Public Prosecutions (‘ODPP’).}

^{** Andrew Gay (Bachelor of Arts, Australian National University 2020; Juris Doctor, University of New South Wales 2023) is the associate to the Director of Public Prosecutions at the New South Wales ODPP.}

^{[1] While the application in R v Hegedus (District Court of New South Wales, Robinson DCJ, 3 November 2023) was determined on 3 November 2023, reasons were not given until 21 February 2024.}

^{[2] Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5BB(1) (‘AVL Act’).}

^{[3] Ibid s 5BB(4).}

^{[4] Section 5BA(6) of the AVL Act prescribes various factors that the court must take into account where relevant when considering the ‘interests of the administration of justice’ test under s 5BA(1). Although this test is concerned with ‘physical appearance proceedings’ like criminal trials, similar factors are potentially relevant to the test for ‘non-physical appearance proceedings’, including sentencing proceedings, in s 5BB(1).}

^{[5] Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report No 31, 11 June 1986) [490]–[503] (‘Aboriginal Customary Laws’).}

^{[6] Ibid [500].}

^{[7] For a discussion of the concept of collective ‘social and emotional wellbeing’ see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021) 7–10.}

^{[8] Paul Carr, Cultural Consultation and Report (Report, 27 October 2023) [12], [18].}

^{[9] Ibid.}

^{[10] See, eg, Queensland Health, sad news sorry business (Report, December 2022) 12; ALRC, Aboriginal Customary Laws (n 5) [331].}

^{[11] Carr (n 8) [21].}

^{[12] ALRC, Aboriginal Customary Laws (n 5) [501].}

^{[13] Ibid.}

^{[14] Ibid [402].}

^{[15] Australian Institute of Criminology, Homicide in Australia 2022–23 (Report 36, 30 April 2024) 22.}

^{[16] Pursuant to s 5BB(1) of the AVL Act.}

^{[17] R v Knight (No 1) [2023] NSWSC 195 (‘Knight’): at [16] Yehia J states that the evidence concerned representations by the deceased’s sisters. This is an error that was not corrected by the parties during the proceedings.}

^{[18] Ibid [14], [28]–[30].}

^{[19] Ibid [23].}

^{[20] Ibid [24].}

^{[21] Ibid [25].}

^{[22] Ibid [28].}

^{[23] Ibid [28]–[30].}

^{[24] Ibid [27].}

^{[25] Carr (n 8) [11].}

^{[26] Ibid [13].}

^{[27] Ibid [20].}

^{[28] Ibid [21].}

^{[29] Pursuant to s 5BB(1) of the AVL Act.}

^{[30] Transcript of Proceedings, R v Hegedus (District Court of New South Wales, 2021/00305210, Robinson DCJ, 21 February 2024) (‘R v Hegedus’) 5–6.}

^{[31] Ibid 7.}

^{[32] Ibid.}

^{[33] Ibid 6.}

^{[34] Ibid 10.}

^{[35] Ibid.}

^{[36] Ibid.}

^{[37] Ibid 9.}

^{[38] Ibid.}

^{[39] Ibid.}

^{[40] Knight (n 17) [22]; R v Hegedus (n 30) 9.}

^{[41] Knight (n 17) [25].}