Judges urged to consider faith, culture in sentencing

All Australians are equal before the law, but when it comes to being sentenced in court it seems some could be more equal than others. The Judicial Commission of NSW, Ellie Dudley writes, has a new guide for judicial officers in specialist courts, such as drug courts, that deal with criminal proceedings without a jury. The guide is not for use in “more serious” criminal matters, and the techniques it sets out are “not designed to excuse offender behaviour nor argue for judicial leniency”. It is very much about helping judges develop “therapeutic skills” so they make decisions that help with offenders’ rehabilitation and keep them out of the courts in the future. But not, on the basis of examples highlighted, all offenders. By specifying certain religious and national groups in need of consideration the guide takes agency from individuals. As egregious identity politics, it is hard to beat.

Thus the manual tells readers “the lasting effects of colonisation and the disruption of Indigenous families and cultural transmission have created a difficult legacy of risk and vulnerability that has been passed from generation to generation”. It also lists “potential specific sensitivities for Muslim people appearing in court”, including “a sense of personal responsibility to react to world events, in the context of religious injunctions to support others of the same faith”. Jews, however, are not mentioned.

But Africans are because “extensive periods of colonial rule … can make interactions” with “ ‘western’ entities complex”. And “Asians” – a remarkable stereotyping of people from different cultures – have cultural circumstances, the guide says, that should be considered. But it offers less help than blather for court officers hoping to help an offender from any of the 50 or so countries in Asia: “By recognising and celebrating the unique strengths and talents of each individual, rehabilitation programs can empower offenders to build a positive future.”

That courts should consider the circumstances of every individual found guilty is a perennial challenge in determining sentences based on law and community interest. It is an immensely difficult task, which judges and magistrates do not always get right – regular reports of crimes committed by people on bail and recidivist domestic violence offenders make that clear. But while justice dictates that punishment as defined by law should fit the crime, compassion and common sense require judges to consider each offender’s individual circumstances in sentencing.

Longstanding diversionary programs to keep young Indigenous Australians out of prison demonstrate that dealing with individual circumstances does not depend on chaining them to undoubted wrongs done to their ancestors. Assuming that people of Islamic faith or African ancestry cannot balance culture with the rights and responsibilities of their adopted country implies they are not quite Australian. Such challenges existed long before academics dressed up common sense and experience in the robes of a theory of “therapeutic jurisprudence”. There is much of the self-help manual in this guide, including advice on how the judicial officer “should use open questions, with active listening skills and attentive and encouraging body language”. That goes to the irrelevance of this intrusive and unnecessary social science excursion into the law. It patronises Australians whom it deems to be victims of culture and history, it creates a theory to impose on practical experience, and it tells judges how to do an important part of their jobs.