The Nunga Court Division of the Magistrates Court formally commenced on 1 March 2023. It had been operating in practice from as early as 1999, in initially at Port Adelaide before beginning at other locations. Whilst typically referred to as the Nunga Court, it has also been referred to as Aboriginal Court Day or the Aboriginal Sentencing Court.
The Nunga Court provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.
Pursuant to section 9AA of the Magistrates Court Act 1991 (SA), the purpose of the Nunga Court is to:
The Nunga Court operates from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts. The Courts Administration Authority Nunga Court Bench Book provides an overview the legislation, rules and practices of the Nunga Courts at Port Adelaide and Murray Bridge.
Sentencing procedures are less formal when facilitated through a sentencing conference. The Nunga Court is required to be conducted with as little formality as possible, as quickly as reasonably practicably and in a way that is likely to be understood and followed by the defendant, the defendant's family members and any other members of Aboriginal and Torres Strait Islander communities [s 9AA(4)].
The Nunga Court must be assisted by one or more [s 7C]:
The Nunga Court may also be assisted by any other person the Court deems appropriate. The person or people assisting the Nunga Court do so by providing advice on Aboriginal and Torres Strait Islander society and culture, and any other matter the Court considers appropriate. Aboriginal Justice Officers can also provide the Magistrate with advice on relevant cultural and community issues.
All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.
The previous Criminal Law (Sentencing) Act 1988 (SA) was amended in 2005 to provide legislative support to the practice and procedure adopted by the Magistrates Courts facilitating Aboriginal Court Day. Such practices continued through the operation of section 22 of the Sentencing Act 2017 (SA) which provided for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 22(1)(b)]. Any court of criminal jurisdiction could convene a sentencing conference in accordance with section 22 when sentencing an Aboriginal defendant, where the defendant consented to the process. For example, the Supreme Court has conducted sentencing conferences to sentence Aboriginal defendants [see R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237 at paras 3, 4 and 17;R v Grose (2014) SASFC 42 where on appeal the Full Court ordered that the matter be remitted back to the District Court, to convene a sentencing conference].
Section 22(2) of the Sentencing Act 2017 (SA) prescribes that a sentencing court is not required to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene one [s 22(2)].
A sentencing court should conduct an analysis of whether a sentencing conference should be held, with regard to the purpose of the sentencing conference techniques, as in R v Grose, Sulan J added at [122]:
'The Judge, in determining that he would not order a s 9C conference, appears to have decided that, because a sentence of imprisonment was inevitable, he would not be assisted by convening such a conference. The very fact that the defendant had a troubled past, and that he had continuously reoffended, is a reason for investigating in detail the causes of the defendant’s conduct. The legislation recognises that persons of Aboriginal descent may have issues and factors in their lives which are not necessarily easily understood or revealed in the usual sentencing process.'
Therefore, the sentencing court has a discretion as to whether or not a conference is convened under what is now the Sentencing Act 2017 (SA). The rules that apply in the Nunga Court from 1 March 2023 are summarised below.
The Nunga Court Division is available to a defendant:
The Court should grant eligible applications to be sentenced in the Nunga Court, except where it is not appropriate to do so [Magistrates Court Act 1991 (SA) s 9AA(2) and (3)].
A person is an 'Aboriginal or Torres Strait Islander person' for the purpose of the Nunga Court if the person is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the Aboriginal or Torres Strait Islander community to be, an Aboriginal or Torres Strait Islander [s 3(1a)]. All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person.
A defendant who has other unresolved criminal offence(s) in any other court may not be considered appropriate for sentencing in the Nunga Court.
A defendant who is suffering from a mental impairment (as defined by section 30 of the Sentencing Act 2017 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender) may not be eligible for a sentencing conference [see Magistrates Court Diversion Program; Drug Court]. The Court has a discretion as to whether or not the defendant will be accepted for the Nunga Court, and may refuse an application to be sentenced in the Nunga Court.
Historically, Aboriginal Court Day had been available to Aboriginal defendants who had either entered guilty pleas or been found guilty of an offence(s) and who wished to be sentenced by way of a sentencing conference. The Magistrates Court Act 1991 (SA) limits the jurisdiction of the Nunga Court to persons who have pleaded guilty to offences only [s 9AA(2)].
As the conference will include Aboriginal Elders and Respected Persons from the geographical area near the court, applications should be made to the court nearest the community with which the defendant is connected.
A sentencing conference must include the defendant, the defendant's legal representative and the prosecutor, and may include the victim [see Sentencing Act 2017 (SA) s 22(3)]. Nunga Court sentencing conferences must also include an Aboriginal Elder or Respected Person or a person qualified to provide cultural advice. They may also include a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [s 22(4); see also Magistrates Court Act 1991 (SA) s 7C]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [ss 22(1) and 22(6)].
In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process [see Working with Aboriginal Defendants chapter]. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Sentencing Act 2017 (SA) s 29(1); Griffiths v The Queen (1977) 137 CLR 293;[1977] HCA 44 for common law principles; and Deferral of Sentence (above)].
A sentencing conference will ultimately be conducted in accordance with directions given by the presiding judicial officer [Joint Criminal Rules 2022 (SA) r 148.1(3)].
The judgment in R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237recognised the value of sentencing conferences for ‘informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard sentencing procedures ’, and also clarified that:
However, the more recent judgment of R v Grose (2014) 2014 SASCFC 42 (which considered the 2013 HCA case of Bugmy v The Queen (2013) 302 ALR 192) confirmed:
'whilst membership of a particular ethnic or other group is, without more, irrelevant, membership of a particular ethnic or other group becomes relevant when it tells the court something about the offence or the offender relevant to the determination of the appropriate penalty' and
'...in all cases, the court is obliged to consider the extent to which, and the manner in which, those cultural factors impact upon the particular defendant'
per Gray J at [38], [43].
For further information in relation to sentencing principles refer to the Working with Aboriginal Defendants, Guilty Pleas and Sentencing chapters.
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