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The Walama List Sentencing Procedure

From 31 January 2022 Practice Note 26 of the District Court, which establishes the ‘Walama List’, will come into effect. Her Honour Judge Dina Yehia SC will be the...

Justin Wong

From 31 January 2022 Practice Note 26 of the District Court, which establishes the ‘Walama List’, will come into effect. Her Honour Judge Dina Yehia SC will be the managing the Walama List, starting at the Sydney Downing Centre District Court.

The word ‘Walama’ means ‘come back’ or return in Dharug. The Walama List aims to reduce reoffending and address the underlying risk factors of participants by involving Elders, community members and access to services.

The Walama List sentencing procedure occurs before an offender is sentenced and is available to eligible Aboriginal and Torres Strait Islander persons charged with certain criminal offences before the District Court of NSW. It allows an offender to engage in culturally specific programs and demonstrate active steps towards rehabilitation. The Walama Judge may take into account the completion of a Walama Case Plan when sentencing an offender.

Who is eligible to be referred to the Walama List?

There are various requirements you must satisfy prior to making an application for referral to the Walama List, including that you must:

  1. Plead guilty to a criminal offence before the Local Court or upon Arraignment in the District Court;
  2. Sign an Agreed Statement of Facts;
  3. Be a descendent of and/or identify as an Aboriginal or Torres Strait Islander person, and be accepted as such by the relevant community; and
  4. Be willing to participate in the Walama List sentencing procedure.

It is important to note that the following offences are not eligible to be referred to the Walama list:

  1. A prescribed sexual offence as defined by s 3 of the Criminal Procedure Act 1986 (NSW); 
  2. Wounding or grievous bodily harm with intent);
  3. Choking, suffocation or strangulation); or
  4. Murder.

Further, the Walama List is only available to matters that are listed for sentence in the Greater Sydney Area (specifically the Sydney, Parramatta, Campbelltown and Penrith District Courts).

How can you apply for an Application for Referral to the Walama List?

If you satisfy the eligibility requirements, and you have either been committed for sentence or you have entered a plea of guilty after committal to the District Court, your legal representative is able to make an Application for Referral to the Walama List. Once an Application for Referral has been made, the matter will be adjourned for mention to the Walama List.

What happens once you have been referred to the Walama List?

If you are being held in custody, a bail release application may be made by your legal representative at the first or second mention, subject to the usual notice requirements.

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Step 1: The First Mention

The first mention will need to be attended by you and your legal representative, a representative for the prosecution, a Senior Aboriginal Client and Community Support Officer (SACCSO) and the Walama List Judge.

At the first mention in the Walama List, orders will be made for the prosecution to serve and file the Crown bundle no later than 3 business days prior to the second mention. The matter will then be adjourned for a second mention.

Step 2: Initial Intake Documentation

Between the first and second mention in the Walama List, the SACCSO will interview you and complete the initial intake documentation.

Step 3: The Second Mention

At the second mention the prosecutions bundle will be formally tendered. On this occasion, orders will be made for the defence to serve and file their bundle no later than 7 business days prior to the Sentencing Conversation. The matter will then be adjourned for a Sentencing Conversation.

Step 4: Sentencing Conversation

Following the second mention, a Sentencing Conversation will be had between:

  • You and your legal representative;
  • The Prosecution;
  • A Community Corrections Officer and/or caseworker;
  • Two Aboriginal or Torres Strait Islander Elders or Respected Persons nominated by the Walama List Judge;
  • The SACCSO; and
  • A support person or any other person(s) the Walama List Judge considers appropriate.

During this Conversation, there will be discussion about you, including your background, offending behaviour, need for treatment, as well as your willingness to comply with a Walama Case Plan. At this time, the Walama List Judge may also:

  • Impose conditions on your bail requiring you to take part in assessments for rehabilitation programs;
  • Impose conditions on your bail requiring you to commence specified rehabilitation programs;
  • Nominate support agencies and/or case workers to you; and
  • Make any other orders necessary to facilitate the Walama Case Plan.

Step 5: Preparing the Draft Walama Case Plan

A Walama Case Plan is drafted by the Community Corrections Officer/caseworker after discussions at the Sentencing Conversation. This plan aims to address your individual needs, including any culturally appropriate rehabilitation programs, therapy, counselling or any other support services.

Step 6: Case Plan Conversation

At the first Case Plan Conversation, your Case Plan will be formally discussed and finalised by the Walama List Judge. The Judge may then adjourn the proceedings (for a period of up to 12 months) to allow for further Case Plan Conversations. These further Case Plan Conversations are aimed to monitor the suitability and effectiveness of the Case Plan, as well as compliance with the Plan.

Step 7: Sentencing

Upon the completion of your Walama Case Plan, the Walama List Judge will formally sentence you. The sentencing options available are the same which are available at law. The Walama List Judge will consider your compliance with the Walama Case Plan when using their discretion to determine an appropriate sentence for you.

What if you breach the conditions of your Walama Case Plan?

The Walama List Judge has various options if you are caught breaching a condition of your Walama Case Plan, including:

  • Taking no action;
  • Amending your Walama Case Plan;
  • Discharging you from the Walama List sentencing procedure; or
  • Proceed straight to sentencing.

Can you choose to cease participating in the Walama List sentencing procedure?

You may elect to cease your participation in the Walama List sentencing procedure. If this occurs, the Walama List Judge may:

  • Record a note of your withdrawn participation on your Court file;
  • Adjourn the case for sentence; and
  • Direct the preparation of a Sentencing Assessment Report (if this has not already been ordered).

Image Credit: ejakob