Handbook for Judicial Officers — Therapeutic jurisprudence and the trauma-informed court

I am honoured to be a NSW magistrate and proud of my Aboriginal heritage. Despite occupying this position of privilege, I come from circumstances such that I never dared to dream of the life I now lead.

The following is a snapshot of my childhood — I tell it not to engender sympathy nor promote myself, but to convey the message of hope that underpins this narrative.

My background as a child was beset by emotional turmoil and fear. My mother was an Aboriginal woman who lived, I suspect, with a mental health condition and my father was a white Englishman who was removed from his home to a “boy’s home” and then sent to Australia as a child. Miscegenation carried with it much stigma that my parents battled constantly. They also carried significant burdens from their own childhoods and their trauma was integral to my upbringing and that of my brother and sister. My siblings and I have all experienced what is commonly known now as “intergenerational trauma”, the process of passed on suffering, and responded to it in differing ways.

Our family home was dysfunctional: my only dreams were of escape. Our Aboriginal heritage was not openly acknowledged and having lighter skin, like many Aboriginal kids, I could “pass” as a white boy. I was called “milko” and the “adopted one”, and my sister was called “pickaninny”. When very young I learnt racial identity or skin colour were serious matters when I witnessed my dad assault “blokes” in response to taunts of “wog” or “boong” directed at my sister or mum. Home-life was not conducive to study or familial harmony; it was the place I reluctantly went after school. Home was the hiding-place for domestic violence and emotional chaos, where I was knifed twice, exposed to cannabis at 13, heroin at around 14, and sexually assaulted. My mother, in my early years, was often unable to cope with her life circumstances. My father had his own trauma that manifested often in his poor relationship with my mum. It was a poor marriage and germinated angst, anger and anguish.

School life was traumatic because I was always behind in my studies, numb from the dysfunctional home life. Despite being well fed and well clothed, I was traumatised. I stayed at school — I liked sport and was captain of a very average first 15, but I failed the HSC (152 out of 500). The fierceness and acting-out of my adolescence were eased only by the opportunity to drift between different social groups to surf and “be” somewhere and someone else, where I felt comfortable and able to create a different identity — not getting in punch-ups and not being from that family with the long grass and ramshackle fence. The ocean provided solace and reminded me that there could be moments of enjoyment; even though I was never the best surfer I had the option of a new identity.

I left school and worked at a variety of manual jobs. I was a bricklayer for some years, drove a truck and did stop-go traffic control. One day, someone said to me “You are smart Mark, why don’t you go to university?” My initial thought was, “Me? Seriously? Nar.” I eventually came to know that there were opportunities for mature age students and, importantly, computer programs with grammatical correction and spell-checking functions as I had a condition that affected my eyesight. I think, despite my background, on some level I thought I was smart and had developed a capacity to think. I had spent a lot of time observing how my world worked and wishing it was better. So, the seed was sown. In the town where I lived, a satellite campus had opened, and it was mainly mature students like me who chanced to land on that welcome mat of good fortune. I recall the feeling of impending change that accompanied my return to education and was intoxicated by it.

I eventually studied Arts/Law and learned about my people’s history and struggles. A lot of that history was a shock to me and remains so; it was left out of the school curriculum in the 1970s. Wollongong University was a place where I accessed many tools with which to make sense of the world I had occupied as a child and young man. I met many erudite people, academics like the late Jack Goldring and the late Penny Pether, Luke McNamara, Robyn Handley and others who encouraged me and whose knowledge stimulated me to think about social justice, to learn more and apply my own life experiences. After graduating, I worked in private practice for a while and then for the Aboriginal Legal Service. I found the ALS difficult: being exposed to many of the same issues I struggled with as a child everyday was an emotional headwind that became too strong to navigate. From there I went on to build a successful criminal law practice. I am proud of what I achieved as a lawyer, both in and out of court and of my coaching rugby league and rugby union teams that had several young Aboriginal players, some of whom followed options to play in and go to school in Sydney. Providing them with options was a highlight.

Then, in 2013, I became a magistrate. My journey has been one less travelled, but it has taught me much about what it is to be a “successful” Aboriginal person in a country where any kind of recognised success for my people is a relatively recent achievement. It was, and remains, difficult to reconcile my childhood and youth with who I have managed to become. Like many Aboriginal people who have acquired the trappings of success taken for granted by some, I am still confounded as to how I arrived here. But I am confident my footprints can be followed — hopefully others will find them.

I hear much talk concerning identity politics and Aboriginal people, often based on the assumption that we are a unified, monolithic group whose identity as colonised people dictates our political persuasions and our aspirations. While we may share a history of oppression and injustice under colonial rule and a desire to see justice for Indigenous people, Aboriginal people in this country are as diverse as any other group. Our identities lie in our heritage, not in our beliefs, politics or ambitions. We transcend the spectrum of varied gender identities and epidermal differences and conceive our culture in a broad variety of ways. We occupy a plethora of positions and have a multiplicity of interpretations of our direction in the present culture, some conservative, some moderate and some radical.

Yet, the hopes and ambitions of many remain unrealised while prisons in NSW are housed by 27% Aboriginal males and 37% Aboriginal females, a total of 28% Aboriginal people^[3] but we only make up 3.4% of the adult population.^[4] As an Aboriginal person, I find these statistics saddening to say the least. Fortunately, I had an opportunity of choice and, somehow, the wherewithal to make a different life. For so many First Nations people, the opportunity to be active agents in our own lives is not available yet. Every week, I see people who were me before I was able to recognise and follow a different set of footprints to a better life. Young kids, adolescents, men and women who end up in the criminal justice system, eventually incarcerated often because of the lack of options and opportunity to change. It is no secret that the statistics for Aboriginal incarceration are appalling and indeed, shameful. However, I am encouraged: many are now working hard to find new methods, strategies, ways of dealing with Aboriginal “offenders” that are culturally responsive and considerate of facts such as intergenerational trauma, poverty, foetal alcohol spectrum disorder (FASD), addiction and violence, and that recognise the importance of working with Aboriginal community members and developing culturally-specific court processes.^[5]

The culturally-specific court processes currently being used offer hope. These initiatives are formulated in consultation with First Nations people and attempt to deviate from present practice and procedure in care, criminal and coronial proceedings. I have witnessed the benefits of some of these approaches and we are now beginning to see a reduction in recidivism and the return of some Indigenous kids to their respective cultural lands and families. The Youth Koori Court and Care Indigenous list in the Children’s Court, the Walama List in the District Court and Circle Sentencing in the Local Court are all appropriate and respectful models.

In my opinion, culturally-specific processes are particularly effective in the criminal jurisdiction and may reduce criminal offending because:

The processes, which statistics suggest will lead to better outcomes, will reduce recidivism, give me hope, and are a credit to those involved. However, the burden and pressure on community members must be carefully managed, as does the potential division within a participating community. Additionally, a chronic addiction to chemical drugs may reduce the effectiveness of a cultural process as drug addiction can lead to a loss of all ties to family, community, and culture; a loss that may render culturally-specific court processes less effective if cultural leverage cannot be revived. I will never forget when I was 21 returning from my mother’s funeral to find the back door of the house where I was living laying on the floor. A friend who lived with a drug addiction had kicked the door off its hinges, gone inside and stolen family belongings (except my mother’s things). He did this knowing that I would be away at her funeral — such is the desperation of addiction. He was charged and sent to prison. I feel he was ashamed of what he did because he had lost all sense of dignity, trustworthiness and self-control.

On an encouraging note, the NSW Drug Court program, which aims to teach discipline and self-control to participants, is continually proving its effectiveness. I support its expansion specifically into areas that could involve more First Nations people.

Sexual and domestic violence leaves an indelible scar on many First Nations families and communities. Such offending may not be suitable for the current cultural processes because of the impact such offences have within a community, and the social burdens and polarising pressures placed on well-meaning community members, particularly women, who participate. Dealing with perpetrator violence may need to be reconsidered by understanding its root cause and mandating appropriate compulsory programs, even in a custodial setting. I felt the impact of domestic violence and understand the debilitating effect it can have on a family. I saw plates thrown and smashed, and a bottle weaponised and smashed across a face. It is a toxic environment in which to grow up. Its unpredictability erodes trust and cripples confidence; it is debilitating. It is serious.

Legally, the position is that for domestic violence offenders, general and specific deterrence and denunciation is the appropriate approach. The High Court in The Queen v Kilic^[6] recognised a societal shift in relation to domestic violence:

In assessing the crime before it, the court at [28] referred to:

Proper recognition must be given to the real harm crimes such as this do to their victims, the children of victims, and the community in general. That said, the High Court in Munda v Western Australia^[7] recognised that full-time custodial sentences are likely to be of little utility in reducing violent crimes especially those not premeditated and committed in areas of significant social disadvantage. As we know, imprisonment can sever any remaining cultural links and pro-social bonds and places violent offenders into an intrinsically violent environment. But the High Court also made these important points:^[8]

As a judicial officer I confront the domestic violence endemic in our communities daily and often the tools and resources to adequately address the problem of repeated domestic violence offending are limited. Yet, in my opinion, diversion into any of the present culturally-appropriate court processes would be problematic as such sentencing of domestically-violent offenders could fracture communities and place overwhelming burdens on victims and families.

I am grateful and humbled to be a magistrate and one whose work as chair of the First Nations Committee focuses on the improvement of the justice system. When working, I am even handed, but I do notice the number of First Nations people who came before the courts. Nonetheless, I am optimistic that the courts are moving towards recognised, culturally appropriate and adequately funded models with legislative frameworks. My Aboriginality and my background, while unusual perhaps compared to other judicial officers, have provided me with the knowledge that change is always a possibility if we are able to see opportunity when it arises.

As a magistrate, I see it as my duty to identify hope, to convey its possibility and to do whatever is appropriate to ensure its fruition in others.

The author as a boy pictured with his sister Yvonne. As the author writes, he was referred to as “milko” and Yvonne as “pickaninny”. In preparation for this article, the editor of the Judicial Officers’ Bulletin met Yvonne and an old family friend who shared the author’s reflections of his turbulent early life.