Taking the problem seriously? Sentencing Indigenous and non-Indigenous domestic violence offenders
| Date | 01 December 2015 |
| Author | Christine EW Bond,Samantha Jeffries |
| DOI | 10.1177/0004865814554306 |
| Published date | 01 December 2015 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2015, Vol. 48(4) 463–482
Taking the problem seriously?
! The Author(s) 2014
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DOI: 10.1177/0004865814554306
non-Indigenous domestic
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violence offenders
Samantha Jeffries
School of Criminology and Criminal Justice, Griffith University,
Queensland, Australia
Christine EW Bond
School of Criminology and Criminal Justice, Griffith University,
Queensland, Australia
Abstract
The ‘problem’ of Indigenous domestic violence has become increasingly dominant in populist
and government discourse, with the criminal justice system (including the courts) being criti-
cised for the possible lenient treatment of offenders. Using a population of cases sentenced in
New South Wales from January 2009 to June 2012, this paper uses multivariate analyses to
explore the intersection between Indigenous status, context of violence (domestic vs. non-
domestic) and the imprisonment sentencing decision. Results suggest that when sentenced
under comparable statistical circumstances, Indigenous domestic violence offenders are equally
likely as those convicted of violent crimes outside of intimate/familial contexts to be sentenced
to prison. In contrast, non-Indigenous domestic violence offenders are significantly less likely
than those convicted of violent offences outside of intimate/familial relationships contexts to be
sentenced to prison. Drawing on the focal concerns sentencing perspective, possible explan-
ations for this finding are explored. The tension faced by the courts between the impact of
colonialism on Indigenous offenders and their communities, the need to protect Indigenous
victims of domestic violence and their communities, as well as overarching expectations around
the punitive treatment of crimes of domestic violence are discussed.
Keywords
Domestic violence, Indigenous Australians, sentencing
Introduction
In the last few decades, there have been significant shifts in criminal justice policy and
practice in responding to the violence perpetrated against intimates and family members
Corresponding author:
Samantha Jeffries, Griffith University, Mt Gravatt Campus, Brisbane, Queensland 4122, Australia.
Email: s.jeffries@griffith.edu.au
464
Australian & New Zealand Journal of Criminology 48(4)
in Australia. Examples of these changes include the implementation of pro-arrest poli-
cies and the introduction of legislation that criminalises nonphysical forms of domestic
violence1 such as harassment and stalking (Ogilvie, 2000). Legislative definitions of what
constitutes domestic violence have also broadened to include criminal behaviour that
would not be considered violent outside of intimate and familial relationship contexts
(e.g. property damage, offensive behaviour) (Ringland & Fitzgerald, 2010).
At the same time, the ‘problem’ of Indigenous domestic violence has become increasingly
dominant in populist and government discourse; a problem that is presented as both illus-
trative of, as well as contributing to, community dysfunction. Since the late 1990s, a number
of Australian government taskforces have reported on the ‘endemic’ nature of this violence.2
The criminal justice system response to Indigenous domestic violence has also been cri-
tiqued, especially the possible ‘lenient’ treatment of Indigenous male perpetrators (Gordon,
Hallahan & Henry, 2002; New South Wales Attorney General’s Department, 2006;
Northern Territory Government, 2007; Pugh, 2002; State of Queensland, 1999; State of
Victoria, 2003). Cases of apparent leniency in the sentencing of Indigenous male offenders
convicted of violence often attract media attention suggesting that this type of violence is not
being taken seriously by Australian criminal justice agencies (most recently, see ABC News
On-Line, 2006; McGlade, 2013; Robinson, 2013). However, much of the concern about the
lenient treatment of Indigenous domestic violence is based on specific cases or incidents.
The apparent leniency afforded to Indigenous domestic violence offenders raised by
particular cases is not surprising, given expectations after the Royal Commission into
Aboriginal Deaths in Custody (1991). The Royal Commission became a trigger for sensitis-
ing Australian courts to the marginalised position of Indigenous Australians, highlighting
the importance of cultural considerations, Indigenous involvement in sentencing and the
negative consequences of incarceration on individual offenders, families and communities
(Jeffries & Bond, 2009). The Commission argued that ‘the powers and decisions of senten-
cing courts present considerable opportunity for reducing the numbers of Aboriginal people
in custody’ (Royal Commission into Aboriginal Deaths in Custody, 1991, chapter 2).
In the post-Royal Commission environment, the sentence severity of Indigenous
domestic violence offenders may be influenced by judicial acceptance of customary
law misinterpretations (supposedly condoning violence), consideration of Indigenous
disadvantage, community dysfunction and the detrimental impact of incarceration on
Indigenous offenders, families and communities (Atkinson, 1990; Blagg, 2008, p. 173;
Bolger, 1991, pp. 80–84; Crips, Davis & Taylor, 2008; Cunneen, 1992; Douglas, 2005;
Douglas & Corrin 2010; Jarrett, 2013; Payne, 1992). As Marchetti (2011, p. 27) notes,
such considerations by the courts, predominately for Indigenous male offenders, are an
attempt to recognise the devastating effects of colonisation, but leave little room for
considering the problems facing Indigenous women and children who are so often the
victims of the men’s violence.
Recent case law and legislative change to sentencing in the Northern Territory (NT)
suggest victim protection may well be taking primacy over concerns about overrepre-
sentation in incarceration and cultural considerations. In the aftermath of the Northern
Territory’s Board of Inquiry into the Protection of Aboriginal Children against Sexual
Abuse, the Federal Government enacted the National Emergency Response Act 2007
(NT), which prevents the courts from ‘taking into account any form of customary law
or cultural practice as a reason for excusing, justifying, authorising, requiring or
Jeffries and Bond
465
lessening the seriousness of criminal behaviour’ (Anthony, 2010, p. 2). Recent case law in
Western Australia, Northern Territory and New South Wales (NSW) also suggests that
the mitigating weight given to Indigenous disadvantage, community dysfunction, over-
representation (and its associated negative impacts) maybe lessening, particularly in
(although not limited to) domestic violence cases. These changes indicate that the sen-
tencing goals of deterrence, denunciation, Indigenous victim and community protection
are now prioritised, with the potential consequence of more punitive sanctioning
(Anthony, 2013, 2010; Southwood, 2007).
Thus, it is timely to explore whether Australian courts sentence domestic violence
cases differently for Indigenous and non-Indigenous offenders. Using case-level data for
a population of cases in New South Wales, this study examines the intersection between
Indigenous status, the context of violence (domestic vs. nondomestic) and the imprison-
ment (in/out) sentencing outcome.
Prior research on sentencing, domestic violence and Indigeneity
A review of the past research shows limited prior empirical examinations of sentencing in
cases of domestic violence, but a more extensive body of work exploring the relationship
between Indigeneity and sentencing. In other words, with one recent exception, there are
no prior examinations of the relationship between Indigeneity, domestic violence and
sentencing outcomes.
Sentencing of domestic violence offenders
Many domestic violence activists and researchers have argued that domestic violence
perpetrators should receive the same punishment as other violent offenders, so that it is
clearly communicated to perpetrators, victims and the broader community that this type
of violence is as serious as nondomestic violence (Olso & Stalans, 2001). Comparative
sentencing analyses of domestic versus nondomestic violence offending are sparse (and
even more so in Australia). However, despite this advocacy, results suggest that crimes
against intimates and family members are sentenced less harshly than those involving
nonintimate or familial victims (Bond & Jeffries, 2014; Dawson, 2004; Du Mont, Parnis
& Forte, 2006; Gannon & Brzozowski, 2004; Cretney & Davis, 1997).
The majority of prior research on the decision to imprison has relied on bivariate
analyses that fail to adjust for other known sentencing factors (see Cretney & Davis,
1997; Du Mont, Parnis & Forte, 2006; Gannon & Brzozowski, 2004). In a more recent
and robust Australian study, Bond and Jeffries’ (2014) multivariate analysis of the in/out
sentencing decision showed that when violent offenders are sentenced in the New South
Wales, lower courts under statistically similar circumstances (i.e. comparable offender,
legal and case characteristics), intimate and familial offenders were less likely to be
imprisoned, compared to other types of violent offenders. Interestingly, Indigenous vio-
lent offenders were more likely to be sentenced to prison than similarly situated non-
Indigenous defendants. However, although this tells us that Indigeneity has a direct
effect on the sentencing of violent offences, we do not know how Indigenous status
interacts with the context of...
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