Effect of Indigenous status on sentence outcomes for serious assault offences
| Author | Don Weatherburn,Hamish Thorburn |
| DOI | 10.1177/0004865817748179 |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| Subject Matter | Articles |
Article
Effect of Indigenous status
on sentence outcomes for
serious assault offences
Hamish Thorburn and Don Weatherburn
NSW Bureau of Crime Statistics and Research, Sydney, Australia
Abstract
Recent studies have found evidence of a racial bias in sentencing in Australia despite previous
work showing the opposite. However, in some cases, these studies fail to adjust properly for
differences in offence seriousness and in others fail to control for important covariates.
Our aim in this study was to investigate the relationship between Indigenous status and
likelihood of imprisonment for serious assault offences, matching on offence seriousness
and controlling for additional covariates. Multivariate logistic regression with generalized
estimating equations was used to explore the effect of Indigenous status on the likelihood
of a prison sentence while controlling for the other sentence-relevant factors. Interaction
effects were examined by fitting a logistic regression model with all covariates separately for
Indigenous and non-Indigenous offenders and comparing the coefficient of each covariate
for differences. The results show that the marginal increase in the risk of a prison sentence
for Indigenous offenders is less than one percentage point (3.40% for Indigenous offenders
compared with 2.45% for non-Indigenous). Significant interaction effects between Indigenous
status and whether or not the offence was domestic violence related (p¼.024), whether or
not the offence was committed after 2011 (p¼.020) and whether or not the offender had
previously been issue a community service order for a serious assault offence (p¼.025) were
found, each of which altered the probability of imprisonment. Despite this, no interaction
effect was found that resulted in a difference in marginal probability of imprisonment greater
than 1.2 percentage points between Indigenous and non-Indigenous offenders. We conclude
that while there is a significant effect of Indigenous status on sentencing, the effect is vastly
reduced when controlling for additional covariates.
Keywords
Disparity, generalized estimating equations, imprisonment, Indigenous status, sentencing,
serious assault
Date received: 26 February 2017; accepted: 30 October 2017
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(3) 434–453
!The Author(s) 2018
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DOI: 10.1177/0004865817748179
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Corresponding author:
Don Weatherburn, NSW Bureau of Crime Statistics and Research, Henry Deane Building, 20 Lee Street, Sydney,
NSW 2000, Australia.
Email: bcsr@justice.nsw.gov.au
Introduction
One of the main problems currently faced by the criminal justice systems in Australia is
the gross over-representation of Indigenous offenders in the prison population. In
September 2016, nearly 25% of all adult prisoners in New South Wales (NSW) identified
as either Aboriginal or Torres Strait Islander status (NSW Bureau of Crime Statistics
and Research [BOCSAR], 2016), despite only comprising 2.9% of the general popula-
tion (June 2011 estimate, Australian Bureau of Statistics, 2013).
One possible explanation for this discrepancy is systemic bias in the response of the
criminal justice system to Indigenous defendants and offenders, as claimed by Anthony
(2013); Blagg, Morgan, Cunneen, and Ferrante (2005); and Cunneen, Allison, and
Schwartz (2014). However, research seems to be mixed regarding whether or not a
systemic bias exists at sentencing. While there is qualitative research to suggest that
a bias may exist in sentencing (Anthony, 2013; Anthony, Bartels, & Hopkins,
2015; Baldry & Cunneen, 2014; Cunneen, 1992), empirical results on the matter
have been mixed.
In Australia, studies by Bond and Jeffries (2010); Bond and Jeffries (2011a); Bond and
Jeffries (2011b); Jeffries and Bond (2009); Snowball and Weatherburn (2006); Snowball
and Weatherburn (2007) found little or no evidence of a bias between Indigenous and
non-Indigenous offenders at sentencing. In fact, in their review of the quantitative lit-
erature, Jeffries and Bond (2012) concluded:
Once crucial sentencing factors are held constant (especially, current and past offending),
sentencing outcomes for Indigenous and non-Indigenous offenders either achieve parity or
the gap [in sentencing outcomes] is considerably reduced ... In circumstances where dispar-
ity remains, there is evidence to suggest that, Indigenous defendants are at times treated
leniently in comparison with their non-Indigenous counterparts. (p. 23)
Since Jeffries and Bond (2012) published their review, three studies have emerged once
again raising the possibility of racial bias in the sentencing of Indigenous offenders.
The first (Donnelly & Poynton, 2015) was concerned with the question of whether
domestic violence offenders were dealt with more leniently by the courts than offenders
guilty of similar offences that were non-domestic. One of the covariates used in the study
was Indigenous status, which was found to have a significant and substantial positive
effect on the risk of a prison sentence even after controlling for a wide range of other
factors. The odds ratio associated with Indigenous status was found to be 1.37, meaning
that all else being equal, the odds of an Indigenous offender receiving a prison sentence
were 37% higher than that of a non-Indigenous offender. This finding echoes the results
of a similar study carried out in the same year by Jeffries and Bond (2015). They found
that the risk of imprisonment for Indigenous offenders was the same, regardless of
whether they were convicted of a domestic violence or a non-domestic violence offence.
Where the offender was non-Indigenous, however, the risk of imprisonment was
substantially lower if the offence involved domestic violence than if it did not involve
such violence.
Lockwood, Hart, and Stewart (2015) also report mixed results in sentencing dispa-
rities between Indigenous and non-Indigenous offenders in Queensland courts, using
conjunctive analysis of case configurations (CACC) to match appropriate observations.
Thorburn and Weatherburn 435
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