Does Indigeneity Matter? Sentencing Indigenous Offenders in South Australia's Higher Courts
Author | Samantha Jeffries,Christine Bond |
Date | 01 April 2009 |
DOI | 10.1375/acri.42.1.47 |
Published date | 01 April 2009 |
Subject Matter | Articles |
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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 42 NUMBER 1 2009 PP. 47–71
Address for correspondence: Dr Samantha Jeffries, School of Justice, Queensland University
of Technology, GPO Box 2434, Brisbane QLD 4001. E-mail: s.jeffries@qut.edu.au
Does Indigeneity Matter? Sentencing
Indigenous Offenders in South Australia’s
Higher Courts
Samantha Jeffries
Queensland University of Technology, Australia
Christine Bond
The University of Queensland, Australia
In Australia, research investigating Indigenous differences in sentencing is
limited.This study examines the impact of offenders’ Indigenous status on
the decision to imprison and length of imprisonment in South Australia’s
Higher Courts. Results indicate that Indigenous offenders were less likely
than their non-Indigenous counterparts to be sentenced to a term of
imprisonment when appearing before the court under similar circum-
stances. However, when sentence length was decided, Indigenous offenders
were sentenced to longer periods of imprisonment. The theoretical impli-
cations of these research findings are explored including conflict and focal
concerns (attribution) perspectives.
Keywords: sentencing, Indigenous people
It has been just over 15 years since the final report of The Royal Commission into
Aboriginal Deaths in Custody (1991) was released. The Royal Commission was
established to investigate growing public concern about the deaths of Indigenous
Australians in custody. It concluded that Indigenous persons in custody do not die
at a greater rate than non-Indigenous persons, but that the overwhelming differ-
ence is the high rate at which Indigenous people come into custody compared with
others in the community (The Royal Commission into Aboriginal Deaths in
Custody, 1991).
The Royal Commission (1991) made 339 recommendations for reform that
included, but were not limited to, instituting changes in the operation of the crimi-
nal justice system to reduce levels of Indigenous overrepresentation. Nonetheless,
Indigenous imprisonment rates have risen since the Royal Commission and, more
significantly, the gap between the proportions of Indigenous to non-Indigenous
Australians in prison has widened. In 1992, Indigenous prisoners comprised 14% of
the total prison population. As at June 30, 2006, this proportion had increased to
24%, even though Indigenous people only comprise around 2.4% of the total
Australian population (Australian Bureau of Statistics, 2001, 2006). As at June 30,
2006, Indigenous Australians were nearly 13 times more likely than non-Indigenous
Australians to be in prison (Australian Bureau of Statistics, 2006). The age standard-
ised rate of imprisonment for Indigenous persons in 2006 was 1,668 per 100,000 adult
population, compared with a rate of less than 1,200 per 100,000 in 1992 (Australian
Bureau of Statistics, 2006; Australia Institute of Criminology, 2005, p. 90).
Treatment at the point of sentencing could provide some explanation for the
continuing overrepresentation of Indigenous offenders in Australia’s prisons.
Government data show that Indigenous offenders are more likely to be sentenced to
imprisonment and, in some cases, receive longer terms of imprisonment than non-
Indigenous offenders (see Baker, 2001; Castle & Barnett, 2000; Loh & Ferrante,
2001). This finding might reflect differential sentencing practices generally favour-
ing non-Indigenous offenders; an alternative explanation could be higher rates of
Indigenous participation in serious crime. In this case, sentencing decisions handed
down by the court may simply be a response to differences in offending behaviours
(Weatherburn, Fitzgerald, & Hua, 2003, p. 1).
International research concerning criminal sentencing indicates that there is a
strong correlation between the seriousness of the offender’s criminal history, the
severity of the offender’s crime(s) and sentencing. Offenders exhibiting more exten-
sive and more serious forms of criminality tend to receive harsher sentences. In
addition, such studies (the majority of which are North American) generally show
that race/ethnicity plays an important role in contemporary sentencing practice (see
reviews by Mitchell, 2005; Spohn, 2000).
Understanding the processes by which Indigenous offenders are sentenced and
why they appear to be sentenced more harshly than their non-Indigenous counter-
parts is crucial, given that Australian governments are seeking to reduce Indigenous
overrepresentation in our prisons. The following research will enhance our under-
standing of how Indigeneity impacts Australia’s criminal courts at the point of
sentencing.
Internationally recognised statistical techniques (discussed in detail below) are
used to investigate the impact of offenders’ Indigenous status on sentencing
outcomes (i.e., the decision to imprison and length of imprisonment term) in South
Australia’s Higher Courts. The Higher Courts were chosen as a site for this research
because their court files provide more detailed information concerning offenders
and the crimes they have committed, compared to the Magistrates’ Court. It is
important to note that our stated research imperative precluded any analysis of
Lower Courts and/or Lower Courts’ decisions that did not routinely impose a
penalty of incarceration.
Prior Australian Research: Offenders’ Indigenous Status
and Sentencing Disparity
In Australia to date, sentencing research of the standard conducted in North
America is sparse. Some studies in this country have sought to examine Indigenous
sentencing disparity by examining the nexus between offenders’ Indigenous status,
sentencing outcomes and other key sentencing determinates (see for example,
Baker, 2001; Luke & Cunneen, 1998). These investigations are rather limited by
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SAMANTHA JEFFRIES AND CHRISTINE BOND
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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