Identifying Aboriginal and Torres Strait Islander offenders and victims in judicial sentencing remarks

Published date01 December 2023
DOIhttp://doi.org/10.1177/26338076221140897
AuthorSarah Clifford,Kalinda E. Griffiths
Date01 December 2023
Subject MatterArticles
Identifying Aboriginal and
Torres Strait Islander
offenders and victims in
judicial sentencing remarks
Sarah Clifford
Menzies School of Health Research, Charles Darwin University, Darwin
NT, Australia
Kalinda E. Grifths
Menzies School of Health Research, Charles Darwin University, Darwin
NT, Australia
Centre for Big Data Research in Health, University of New South Wales,
Sydney Australia
Melbourne School of Population and Global Health, University of
Melbourne
Abstract
Judicial Sentencing Remarks (JSRs) have been utilised by several researchers, as a publicly
available data source, to explore topics such as alcohol and other drug involvement in
intimate partner homicide; the use of therapeutic jurisprudence; narratives of mitigation
for Aboriginal offenders; and the identication and impact of trauma in the sentencing
of homicide offenders (to name a few). There is inconsistency in the existing literature
regarding the methodology for identifying offenders as Aboriginal and/or Torres Strait
Islander. Appropriate and correct identication of Aboriginal and Torres Strait Islander
peoples in the criminal justice system is important because of the distinct differences in
how Aboriginal and Torres Strait Islander peoples experience the criminal justice system,
including sentencing and punishment. We retrospectively developed a manual algorithm to
identify offenders and victims as Aboriginal and/or Torres Strait Islander,non-
Aboriginal and/or Torres Strait Islanderor Unknown. This paper provides an overview
of the development and the application of the algorithm and discusses the importance of
transparency in Aboriginal and Torres Strait Islander identication processes when using
JSRsasadatasource.
Corresponding author:
Sarah Clifford, Menzies School of Health Research, PO Box 41096, Casuarina NT 0811, Australia.
Email: sarah.clifford@menzies.edu.au
Article
Journal of Criminology
2023, Vol. 56(4) 396415
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/26338076221140897
journals.sagepub.com/home/anj
Keywords
Judicial sentencing remarks, Aboriginal and Torres Strait Islander, methodology, content analysis,
algorithm
Date received: 14 February 2022; accepted: 21 October 2022
Introduction
Judicial sentencing remarks (JSRs) have been used as a data source to investigate both judicial
practise and offender characteristics (Bouhours & Daly, 2007; Hall et al., 2016; Jackson et al.,
2021; Lawler et al., 2020; Lowenstein, 2016; Potts & Weare, 2018; Sullivan, 2017; Tutton,
2017; Whittle & Hall, 2018). JSRs are a rich data source, generally including extensive
detail about the offence and the offender. Despite this, there is inconsistency in the existing lit-
erature regarding the methodology for identifying offenders as Aboriginal and/or Torres Strait
Islanders. Appropriate and correct identication of Aboriginal and Torres Strait Islander
peoples in the criminal justice system is important because of the distinct differences in how
Aboriginal and Torres Strait Islander peoples experience the criminal justice system, including
sentencing and punishment (Cunneen, 2018).
While Aboriginal and Torres Strait Islander peoples account for 3.3.% of the total Australian
population (Australian Bureau of Statistics, 2018a), they make up 29% of the national prison
population (Australian Bureau of Statistics, 2020). In the Northern Territory (NT) of Australia,
where the Aboriginal and Torres Strait Islander population accounts for 30% of the population,
the prison population is 84% Aboriginal and Torres Strait Islander peoples (Australian Bureau
of Statistics, 2020). In the NT, Aboriginal and Torres Strait Islander peoples are 12 times more
likely to be imprisoned compared to non-Aboriginal and/or Torres Strait Islander people
(Tubex et al., 2020). Aboriginal and Torres Strait Islander offenders are more likely to serve
their full sentence without parole (45% compared to 21% non-Aboriginal and/or Torres
Strait Islander offenders) and more likely to have previously been incarcerated (81% compared
to 29% non-Aboriginal and/or Torres Strait Islander offenders) (Tubex et al., 2020).
The factors which lead to this overrepresentation are complex and overlapping. The
Australian Institute of Criminology highlights that overrepresentation results from an accumu-
lation of conspicuous street offences and ne default, over-zealous policing, and disadvantage
throughout the juvenile, and later judicial, processes(Hazlehurst & Dunn, 1988, p. 2). While
there certainly are clear contributing factors such as the over-policing of Aboriginal and
Torres Strait Islander peoples (OBrien, 2021) other aspects, like disadvantage throughout
judicial processes, are more complex and intrinsically linked to social and economic status.
The 1991 Royal Commission into Aboriginal Deaths in Custody noted two overarching
areas for reforms. The rst was the criminal justice system itself and the second was the
factors which bring Aboriginal and Torres Strait Islander peoples into contact with the criminal
justice system (Johnston, 1991). These factors include employment, housing, education, health,
and poverty (Cunneen, 2006). Although many Aboriginal and Torres Strait Islander peoples are
employed and well-educated with high social economic status, when compared to
non-Aboriginal and/or Torres Strait Islander Australians, more Aboriginal and Torres Strait
Islander peoples experience unemployment (50.9% compared to 20.1%), have not completed
Year 12 or equivalent (34.1% compared with 9.6%), and have a lower median weekly house-
hold income ($553 compared to $915; Australian Institute of Health & Welfare, 2021a, 2021b,
Clifford and Grifths 397

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